LIBRARY 

OF    THE 

UNIVERSITY  OF  CALIFORNIA. 

Class 


THE  LIFE  &  PUBLIC   SERVICES 

OF 

SIMON  STERNE 


THE 

LIFE  &  PUBLIC  SERVICES 


OF 


SIMON    STERNE 


BY 

JOHN   FOORD 


' 


ILontron 

MACMILLAN    AND    CO.,   LIMITED 

NEW    YORK  :     THE    MACMILLAN    COMPANY 

1903 

All  rights  reserved 


TO    MY 

NOBLE  BROTHER, 

WHO    DEVOTED    HIS    LIFE    TO 
THE    PUBLIC    GOOD. 

L.  STERNE. 


LONDON,  1903. 


PREFACE 

THE  following  pages  are  designed  to  perpetuate 
the  memory  of  a  man  whose  life  was  devoted  to 
the  service  of  humanity.  Simon  Sterne  never  held 
executive  office,  but  he  did  much  to  raise  the 
standard  of  responsibility  attached  to  the  adminis- 
tration of  a  public  trust ;  he  never  sat  in  the  State 
or  National  Legislature,  but  no  man  of  his  genera- 
tion exercised  so  much  influence  in  elevating  the 
character  of  legislative  methods  ;  he  never  occupied 
a  place  on  the  Bench,  but  the  interpretation  of  the 
law  affecting  railroads  and  corporations  owes  more 
to  him  than  any  one  of  his  contemporaries.  His 
life  was  full  of  activity,  and  from  his  twenty- 
second  year  to  his  death  there  was  no  year  in  it 
which  was  not  rich  in  effort  that  redounded  to 
the  benefit  of  his  fellowmen.  The  author  of 
this  volume  disclaims  other  credit  for  its  con- 
tents than  that  which  belongs  to  the  judicious 
compiler  and  conscientious  interpreter.  All  of 
the  book  that  is  his  is  the  arrangement  of  its 
contents,  and  the  thread  of  narrative  and  explana- 
tion on  which  the  subject-matter  is  strung. 


vu 


CONTENTS 
CHAPTER   I 

PAGE 

BIOGRAPHICAL I 

CHAPTER   II 

CONTRIBUTIONS    TO    THE    SOLUTION    OF    THE    LABOUR 

PROBLEM 35 

CHAPTER   III 

PARTICIPATION  IN  PARTY  POLITICS        .          .          .          .65 

CHAPTER   IV 

ADVOCACY  OF  PROPORTIONAL  REPRESENTATION        .         .       96 

CHAPTER   V 

REFORM  OF  THE  METHODS  OF  LEGISLATION  .         .134 

CHAPTER  VI 

THE  RELATIONS  BETWEEN  THE  RAILROADS  AND  THE  STATE     174 

ix 


x  LIFE  OF  SIMON  STERNE 

CHAPTER  VII 

PAGE 

CORPORATIONS  AND  CORPORATE  RESPONSIBILITY     .          .220 

CHAPTER    VIII 

THE  TWEED  RING  AND  THE  COMMITTEE  OF  SEVENTY  .     246 

CHAPTER   IX 

THE  SISYPHEAN  LABOUR  OF  MUNICIPAL  REFORM  .     284 

CHAPTER   X 

PROFESSIONAL  ACTIVITY        .         .         .          .         .         .318 


INDEX    . 


339 


CHAPTER   I 

BIOGRAPHICAL 

SIMON  STERNE  was  born  in  Philadelphia  on  July 
23>  X839-  His  parents  were  Henry  and  Regina 
Sterne.  After  leaving  public  school  he  was  sent 
to  Europe,  and  had  the  advantage  of  a  short 
course  of  study  at  the  University  of  Heidelberg, 
whence  he  returned  to  enter  the  law  department 
of  the  University  of  Pennsylvania.  At  this  stage 
of  his  career  his  health  was  far  from  robust,  but 
he  had  early  learned  the  lesson  of  self-denial, 
and  in  after  years  he  reaped  the  full  advantage 
of  the  temperance,  industry,  and  indomitable 
tenacity  of  purpose  which  became  impressed  upon 
his  character  early  in  life.  He  was  graduated 
from  the  Law  School  on  June  6,  1859,  having 
also  pursued  his  legal  studies  in  the  office  of  Mr. 
John  H.  Markland  and  in  that  of  Judge  Shars- 
wood.  He  was  admitted  to  the  Philadelphia  bar 
in  the  year  of  his  graduation. 

The  achievement  was  a  remarkable  one,  con- 
sidering that  young  Sterne  had  barely  reached 
manhood,  and  had  been  handicapped  in  his  years 


2  LIFE  OF  SIMON  STERNE      CHAP. 

of  preparatory  study  not  only  by  poor  health,  but 
also  by  the  necessity  of  earning  enough  to  pay  for 
his  tuition.  There  is  ample  evidence,  however, 
that  his  preparation  for  the  work  of  his  profession 
was  more  than  usually  thorough,  and  that  outside  of 
his  legal  studies  he  had  found  time  to  be  a  diligent 
worker  in  the  field  of  politico-economical  research. 
His  mastery  of  the  principles  of  what  he  found  by 
no  means  a  "  dismal  science  "  must  be  regarded  as 
extraordinary  in  one  so  young,  and  the  conclusions 
he  reached  were  not  by  any  means  those  which 
found  general  acceptance  in  Pennsylvania.  Whether 
from  a  lack  of  sympathy  with  his  environment,  or 
the  desire  to  secure  a  larger  field  for  the  exercise 
of  his  talents,  or  partly  for  both  reasons,  young 
Sterne  moved  to  New  York  in  1860,  and  immedi- 
ately secured  admission  to  the  Bar  in  that  city. 
But  he  had  not  yet  definitely  cast  in  his  lot  with 
the  profession  of  law,  the  exposition  and  study  of 
the  practical  side  of  political  economy  apparently 
presenting  a  career  more  attractive.  It  was  in 
obedience  to  this  dominant  impulse  that,  on  the 
<c  solicitation  and  request "  of  Mr.  Peter  Cooper 
and  others,  he  agreed  to  prepare  a  course  of  lectures 
on  "The  Science  of  Government  and  Political 
Economy,"  to  be  delivered  in  the  spring  of  1863 
at  the  Cooper  Institute.  The  spirit  in  which  he 
undertook  this  work  of  free  public  instruction  is 
indicated  in  the  following  letter  to  his  friend  Judge 
Sharswood  of  Philadelphia  : — 


i  BIOGRAPHICAL  3 

NEW  YORK,  March  9,  1863. 
Honourable  GEORGE  SHARSWOOD. 

Dear  Sir — A  few  weeks  ago  I  took  the  liberty  to  send 
to  you  an  invitation  for  a  course  of  lectures  on  "  Political 
Economy." 

Since  that  time  the  lectures  were  delivered  in  the 
large  hall  of  the  Cooper  Institute,  and  were  the  most 
successful  discourses — the  number  of  persons  present  at 
every  lecture  ranging  from  2500  to  3000 — upon  a  scien- 
tific subject  in  this  city,  since  O.  K.  Mitchell  delivered 
his  celebrated  lectures  upon  Astronomy. 

As  the  sciences  of  Political  Economy  and  Sociology 
are  so  wofully  neglected,  not  only  by  the  public  at  large, 
but  also  by  our  present  race  of  legislators,  I  have  been 
induced,  at  the  request  of  some  of  the  leading  citizens  of 
New  York  who  were  familiar  with  my  predilection,  for 
the  science  and  conception  of  its  importance  to  write  the 
course  of  lectures  referred  to. 

The  success  which  attended  them  proved  to  me  that 
the  present  time  is  most  auspicious  to  awaken  public 
attention  to  the  study  of  that  science,  which,  by  reason  of 
the  rapid  strides  it  has  made  of  late  years,  may  justly  be 
termed  the  science  of  liberty.  In  consequence  of  the 
vicious  empiricism  of  the  politicians  of  the  present  day, 
we  are  likely  to  experience  the  same  difficulties  and  evils 
in  reference  to  the  matter  of  a  depreciated  currency  and 
taxation  as  were  entailed  upon  the  old  nations  of  Europe 
until  experience  had  taught  them  the  natural  laws 
governing  these  subjects.  But  we,  unmindful  of  the 
past,  and  seemingly  regardless  of  the  future,  rushed  madly 
on,  seeing  our  dearest  rights  and  privileges  sacrificed  in 
consequence  of  the  incapacity  of  our  present  race  of 
politicians  to  deal  with  the  most  trivial  subjects  of  govern- 
ment in  accordance  with  the  laws  of  political  economy. 

The  Society  for  the  Advancement  of  Political  and 
Social  Science  of  this  city,  of  which  I  have  the  honour  to 
be  the  corresponding  secretary,  have  requested  me  to 


4  LIFE  OF  SIMON  STERNE      CHAP. 

continue  a  career  so  auspiciously  begun,  and  believing 
that  I  can  render  thereby  more  valuable  services  to  my 
fellow-citizens  than  conducting  a  lawsuit  between  John 
Doe  and  Richard  Roe,  I  will  continue  my  efforts  if  they 
are  at  all  seconded  by  the  public  interest  and  approval. 

SIMON  STERNE. 

It  was  while  in  this  mood  that  he  became  one 
of  the  leader  writers  of  the  New  York  Commercial 
Advertiser,  which  had  become  the  property  of 
one  of  his  clients,  and  engaged  in  the  work  of 
journalism  in  1863  and  1864.  In  1864,  w^h 
David  Dudley  Field  and  Alfred  Pell,  he  founded 
the  American  Free  Trade  League,  and  in  1866  the 
Personal  Representation  Society,  of  which  he  became 
the  first  secretary.  Meanwhile  he  continued  the 
practice  of  law,  but  his  tireless  literary  energy 
found  vent  in  the  editorship  of  the  newly  established 
New  York  Social  Science  Review,  which  began  a 
brief  but  useful  career  in  1865.  In  the  same  year 
he  visited  England,  and  formed  friendships  which 
lasted  throughout  their  lives  with  John  Bright, 
John  Stuart  Mill,  Herbert  Spencer,  Professor 
Fawcett,  Walter  Morrison,  Thomas  Hare,  and 
other  leaders  of  the  political  thought  of  the  time. 
His  acquaintance  with  Mr.  Bright  had  a  some- 
what unpromising  beginning.  It  was  at  a  dinner 
at  the  house  of  Mr.  Morrison,  M.P.  for  Plymouth, 
between  whom  and  Mr.  Sterne  there  existed  from 
the  first  a  strong  sentiment  of  mutual  regard.  It 
happened  that,  in  the  course  of  this  visit  to  London, 
Mr.  Sterne  had  been  asked  to  speak  at  St.  James's 
Hall,  as  an  American,  on  the  extension  of  the 


i  BIOGRAPHICAL  5 

franchise,  which  was  then  the  absorbing  topic  of 
political  discussion  in  England.  Instead  of  putting 
in  a  plea  for  lowering  the  qualifications  of  voters, 
Mr.  Sterne  had  made  a  careful  presentation  of 
what  he  conceived  to  be  the  dangers  of  universal  iX 
suffrage.  This  fact  had  not  passed  unnoticed  by 
Mr.  Morrison's  guests,  who  comprised  all  the 
distinguished  men  above  mentioned,  except  Mr. 
Hare,  with  the  addition  of  Captain  White,  M.P. 
for  Brighton,  and  Leonard  Courtney.  At  the 
mention  of  Mr.  Sterne's  name,  Mr.  Bright  said 
loud  enough  to  be  heard,  "  Is  that  the  crack- 
brained  philosopher  who,  having  been  in  England 
only  a  few  days,  undertakes  to  tell  us  how  to 
conduct  our  politics  ? "  To  this  Mr.  Sterne,  in 
his  characteristically  incisive  way,  made  reply  :  "  It 
may  be  hardly  modest  to  discuss  English  politics 
on  so  short  an  acquaintance,  but  it  is  not  so  bad 
as  to  speak  confidently  about  American  politics 
without  having  been  in  the  country  at  all." 
Mr.  Bright  apparently  took  the  rejoinder  good- 
naturedly,  since  he  conceived  a  lasting  respect  for 
the  earnestness  and  aggressiveness  of  the  younger 
man,  and  was  always  ready  to  extend  to  him  a 
helping  hand  in  the  investigation  of  subjects  in 
which  both  were  interested. 

With  Thomas  Hare,  Mr.  Sterne  kept  up  a 
constant  correspondence,  and  maintained  a  close 
personal  intimacy.  To  Hare's  influence  he  owed 
the  formation  of  what  may  be  called  his  strongest 
political  conviction,  that  in  minority,  or  pro- 
portional representation,  was  to  be  found  the  cure 
for  most  of  the  evils  of  our  system  of  Government. 


6  LIFE  OF  SIMON  STERNE      CHAP. 

Hare  was  never  tired  of  recognising  the  value  of 
the  younger  man's  advocacy  of  his  principles,  and 
when  Mr.  Sterne  undertook  to  adapt  Hare's  work 
on  proportional  representation  to  American  readers, 
its  author  gave  him  the  fullest  authority  to  use 
the  knife  at  his  discretion.  Hare's  system  scored 
some  of  its  earliest  triumphs  in  the  United  States, 
and  thanks  mainly  to  the  fervour  of  the  convictions 
of  his  American  disciple,  The  agitation  for  its 
general  adoption  had  a  longer  life  and  better 
sustained  activity  there  than  in  the  country  of  its 
origin.  How  thoroughly  Mr.  Hare  appreciated 
the  value  of  Mr.  Sterne's  services  to  the  cause 
may  be  inferred  from  the  following  letter,  written 
after  the  news  of  the  assassination  of  President 
Garfield  had  been  received  in  England  : — 

LONDON,  July  23,  1881. 

My  dear  Mr.  Sterne — I  have  been  several  days 
thinking  of  writing  to  you  on  the  present  circumstances 
as  they  aftect  our  agitation  for  what  should  be  as  nearly 
as  possible  a  really  "  pure "  democracy.  I  have  been 
reading  over  again  your  last  excellent  and  exhaustive 
letter  of  February  last.  You  were  then  not  without  hope 
that,  being  no  longer  in  active  participation  with  the  local 
party  organisation,  you  might  be  able  to  devote  more 
thought  and  time  to  the  greater  object  of  obtaining  a  real 
political  representation.  I  can,  however,  well  understand 
that  the  multiplicity  of  other  labours  at  the  Bar  and  else- 
where may  have  stood  in  your  way.  But  I  cannot  help 
thinking  that  the  late  horrible  attempt  on  the  life  of  the 
President,  which  has  given  so  great  a  shock  to  all  think- 
ing persons  in  the  States  and  in  the  civilised  world,  and 
which  has  evidently  awakened  a  profound  feeling  of 
sympathy  throughout  the  Union,  might  justify  and  give 


i  BIOGRAPHICAL  7 

countenance  and  encouragement  to  a  revival  of  our  efforts 
to  give  a  new  and  healthy  and  pure  tone  to  public  and 
political  life.  Whether  the  would-be  assassin  was  sane  or 
mad,  the  act  is  equally  an  outcome  of  the  system  which, 
founding  political  action  on  the  part  of  large  numbers  of 
persons  on  the  mere  hope  of  personal  profit,  creates  the 
bitterness  and  rage  of  disappointment  when  they  fail  in 
their  object.  I  trust  that  the  great  and  powerful  nation 
which  has  grown  up  around  the  nucleus  planted  by  the 
emigrants  of  the  Mayflower  may  not  sink  into  a  parallel 
either  with  the  despotism  or  the  nihilism  of  Russia.  I 
want  to  see  your  institutions  great  and  glorious,  the  envy 
and  admiration  of  the  Old  World.  You  have  all  the 
materials  for  making  them  so,  if  we  can  but  eliminate  the 
prolific  germs  of  evil  that  now  taint  and  corrupt  public 
life.  .  .  . — Ever  yours  sincerely, 

THOMAS  HARE. 

The  early  fervour  displayed  by  Mr.  Sterne  in 
pleading  the  cause  of  free  voting  and  free  trade 
did  not  interfere  with  his  attainment  of  a  re- 
cognised position  at  the  Bar.  The  fact  that  he 
was  known  as  an  ardent  Democrat  doubtless  had 
something  to  do  with  his  selection  as  one  of  the 
counsel  retained  for  the  defence  of  Jefferson  Davis, 
but  the  choice  necessarily  involved  a  recognition 
of  his  professional  standing  as  well.  That  his  own 
estimate  of  this  was  very  modest  is  as  evident 
from  the  following  letter  as  that  his  sense  of  pro- 
fessional propriety  was  exceedingly  keen  : — 

October  18,  1866. 

Gentlemen — You  were  kind  enough  at  some  time  in 
the  year  1865  to  retain  me  as  one  of  the  counsel  of  the 
Hon.  Jefferson  Davis.  Actuated  by  the  hope  that  I 


8  LIFE  OF  SIMON  STERNE      CHAP. 

should  procure  for  Mr.  Davis  a  speedy  trial,  I  accepted  the 
high  trust  of  counsel  in  his  behalf. 

At  that  time,  Mr.  Davis  was  not  allowed  to  com- 
municate with  any  one  outside  his  prison  walls,  and  the 
only  way  for  him  to  obtain  counsel  was  either  by  voluntary 
offer  on  the  part  of  members  of  the  Bar  to  act  as  such, 
or  to  have  them  retained  by  means  of  the  earnest  endeavours 
and  kindness  of  his  friends. 

Mr.  Davis  is  now  in  position  to  communicate  with 
whomever  he  desires.  He  has  already  signified  his 
willingness  to  be  represented  by  Charles  O'Conor  and 
William  B.  Reed,  Esqrs.,  and  under  the  circumstances  I 
earnestly  ask  your  permission  to  retire  from  the  cause. 

So  far  as  I  am  concerned,  the  cause  stands  as  though 
I  were  a  physician  who  had  been  called  to  attend  Mr. 
Davis,  in  consequence  of  his  having  suddenly  fallen  sick 
with  congestion  of  the  brain.  So  long  as  Mr.  Davis  is 
in  an  unconscious  state,  of  course  his  friends  are  in  duty 
bound  to  obtain  for  him  such  medical  aid  as  they  have 
confidence  in,  but  just  as  soon  as  the  patient  is  in  condition 
to  have  his  own  wishes  in  that  respect  complied  with, 
the  physician  called  in  at  the  emergency  should  retire, 
unless  especially  requested  by  the  patient  himself  to  con- 
tinue his  attendance. 

Trusting  that  you  will  agree  with  me  as  to  the  pro- 
priety of  this  step,  I  am,  respectfully  yours, 

SIMON  STERNE. 
J.  W.  LEWELLEN,  ESQ.,  AND  OTHERS. 

Mr.  Sterne  was  always  very  jealous  of  the 
honour  of  his  profession,  and  he  was  profoundly 
impressed  with  the  idea,  years  before  the  Associa- 
tion of  the  Bar  of  the  State  of  New  York  was 
thought  of,  that  the  representative  lawyers  of  the 
city  owed  it  alike  to  themselves  and  their  profession 
to  do  something  to  elevate  its  standards,  and 
render  it  impossible  for  grossly  ignorant  and  unfit 


i  BIOGRAPHICAL  9 

men  to  be  elevated  to  the  Bench.  It  was  in  pursuit 
of  an  effort  to  enlist  the  aid  of  some  of  his  fellow 
lawyers  in  an  organised  movement  for  the  reform 
of  the  Bar  (which  found  expression  in  an  article 
on  "  Law  and  Lawyers  in  the  United  States  "  in 
the  New  York  Social  Science  Review  of  July  1865), 
that  he  elicited  the  following  characteristic  letter 
from  Charles  O'Conor  : — 

NEW  YORK,  September  5,  1865. 

Dear  Sir — Your  favour  of  the  22nd  ult.  is  received.  I 
shall  be  happy  to  see  you  at  any  time  and  to  converse 
with  you  on  the  interesting  subject  referred  to.  Truth 
sanctions  this  statement ;  and  independently  of  any 
emotion  that  might  justly  be  excited  by  the  compli- 
mentary tone  of  your  letter,  common  courtesy  requires 
its  utterance. 

To  the  end,  however,  that  your  valuable  time  may  not 
be  wasted  in  the  attempt  to  enlist  a  co-operation  not 
likely  to  be  available,  I  am  bound  in  fairness  to  apprise 
you  of  a  very  deeply-seated  disinclination  to  participate  in 
efforts  at  reform,  such  as  the  one  advised  in  the  article  on 
Law  and  Lawyers.  I  do  not  disapprove  them,  but  am 
conscious  of  an  almost  total  inability  to  aid  in  them. 
Therefore,  as  qualification  for  really  useful  labour  in 
these  directions  is  not  given  to  me  but  to  others,  theirs 
should  be  the  task  of  performing  them,  and  theirs  the 
honours  and  rewards  that  are  justly  due  to  valuable  public 
service. 

I  would  not  plead  guilty  to  the  imputation  of  being 
extremely  indolent,  or  impeach  myself  for  want  of  ben- 
evolence or  public  spirit.  All  I  mean  to  say  is,  that  my 
power  of  being  useful,  if  any  I  may  claim,  is  best  adapted 
to  employment  in  other  and  different  spheres  of  action. — 
I  am,  dear  sir,  with  great  respect,  yours  truly, 

CH.  O'CoNOR. 

MR.  STERNE. 


io  LIFE  OF  SIMON  STERNE      CHAP. 

No  man  of  Mr.  Sterne's  type  could  have  been 
a  close  student  of  public  affairs  in  New  York  in 
the  later  '6o's  without  being  moved  to  indignant 
protest  against  the  political  corruption  which  was 
then  rampant,  and  which,  though  most  flagrantly 
in  evidence  in  the  City  Government,  had  visibly 
affected  the  conduct  of  public  affairs  both  in  the 
State  and  Nation.  Speaking,  in  February  1869, 
in  a  public  lecture  in  the  Cooper  Union,  Mr. 
Sterne  made  the  following  allusion  to  this  subject 
which  indicated  with  sufficient  clearness  his  attitude 
toward  it  : — "  If  you  tell  me  that  New  York  city 
is  not  a  fair  criterion  by  which  to  judge  our 
political  system,  I  ask  you,  is  the  whole  of  New 
York  State  a  fair  gauge  ?  The  senatorial  dignity 
of  the  Empire  State  was  but  lately  the  subject 
of  a  most  disgraceful  bargain  and  sale.  Go  to 
Washington  and  witness  the  activity  of  that  swarm 
of  vermin  called  the  Lobby,  and  ask  yourselves 
whether  they  could  exist  except  upon  corruption 
of  the  worst  character.  If  you  tell  me  that  in 
our  sparsely  settled  districts  a  purer  atmosphere 
prevails,  I  answer  that  if  sparseness  of  population 
is  the  only  safeguard  for  the  purity  of  the  ballot 
box  and  the  independence  of  electors,  then,  from 
year  to  year,  as  we  increase  in  population,  we  must 
be  content  to  bear  with  a  greater  and  greater  load 
of  political  demoralisation  and  iniquity." 

One  of  the  men  who  at  that  time  were  most 
deeply  in  sympathy  with  such  views,  was  Friedrich 
Kapp,  to  whom  New  York  owed  its  Emigration 
Commission,  and  the  correction  of  a  long-standing 
system  of  immigrant  swindling  and  oppression. 


i  BIOGRAPHICAL  n 

Speaking  at  a  memorial  service,  held  after  the 
death  of  his  friend,  in  1884,  Mr.  Sterne  recalled 
the  impulses  by  which  he  was  led  to  take  a  promi- 
nent part  in  the  movement  against  the  Tweed  Ring 
in  the  following  terms  : — 

From  1860  to  1870  it  was  my  privilege  to  be  on  very 
intimate  terms  with  Mr.  Kapp,  and  my  personal  and 
social  relations  with  him  were  to  me  a  constant  source 
of  pleasure  and  intellectual  profit.  No  man  more 
sincerely  than  Mr.  Kapp  regretted  and  deplored  the  then 
existing  political  conditions  in  the  city  of  New  York  just 
prior  to  1870,  when  the  old  Tweed  Ring  had  almost 
complete  control  of  the  judicial  and  legislative  organisa- 
tion, not  only  of  the  city,  but  of  the  state  of  New  York,  and 
doubtless  his  resolution  to  return  to  his  native  land  under 
the  then  improving  political  condition  of  his  own  country 
was  quickened  by  the  lamentable  condition  of  the  Judiciary 
in  the  city  of  New  York.  From  no  man  more  than  from 
Mr.  Kapp  did  I  receive  words  of  encouragement  in  my 
own  determination  to  do  all  in  my  power  to  assist  in  the 
destruction  of  ring  rule  in  the  city  of  New  York.  He 
frequently  told  me  at  that  period  of  time,  that  he  could 
not  take  part  (as  he  intended  to  return  to  Europe)  in  the 
struggle  which  he  saw  was  inevitable  between  honest 
men  and  the  thieves  in  the  city  of  New  York  ;  but  he 
expressed  the  hope  that  a  constant  endeavour  to  crystallise 
the  opposition  to  ring  rule  and  to  get  rid  of  the  corrupt 
judges,  venal  legislators,  and  complacent  lawyers  would 
be  persisted  in  by  the  few  bold  spirits  who  were  then 
buckling  on  armour  for  that  memorable  struggle. 

On  June  8,  1870,  Mr.  Sterne  married  Mathilde 
Elsberg,  sister  of  Doctor  Louis  Elsberg,  the  cele- 
brated laryngologist.  His  married  life  was  of 
the  happiest,  and  all  the  natural  geniality  of  his 
character  was  revealed  in  the  intercourse  of  home. 


12  LIFE  OF  SIMON  STERNE      CHAP. 

Absorbed  in  public  affairs  and  the  promotion  of 
movements  of  public  utility  as  he  was  all  through 
his  life,  his  love  for  home  remained  one  of  his 
dominant  characteristics.  From  first  to  last  his 
private  life  was  above  reproach  ;  anything  that 
savoured  of  social  impurity  was  as  distasteful  to  him 
as  anything  that  partook  of  falsehood  or  dishonesty. 
One  who  came  to  know  him  intimately,  shortly 
after  this  time,  Mr.  Joseph  H.  Choate,  now  the 
Ambassador  of  the  United  States  to  Great  Britain, 
pays  the  following  sympathetic  and  discriminating 
testimony  to  the  strong  points  of  Mr.  Sterne's 
character  : — a  His  keen  and  subtle  intellect,  well 
nourished  and  enriched  by  an  excellent  education, 
and  his  playful  humour  and  unvarying  good-nature 
which  nothing  could  ruffle,  made  conversation  with 
him  always  attractive  and  delightful,  and  I  am 
indebted  to  him  for  many  pleasant  hours.  We 
rode  often  in  the  Park  together,  and  his  bright 
sallies  and  quick  responses  constantly  cheered  the 
way.  Whatever  subject  came  up,  he  was  always 
exceedingly  suggestive,  and  his  active  mind  and 
ready  sympathy  of  thought  made  everything  easy 
to  him.  His  enthusiasm  —  I  might  call  it  his 
intellectual  enthusiasm — was  a  most  marked  trait, 
and  made  his  life  always  fresh  and  interesting.  It 
always  seemed  to  me  that  he  lived  on  a  higher 
plane  than  most  lawyers.  Although  his  profession 
absorbed  very  much  of  his  attention,  it  never 
absorbed  his  whole  energy,  which  was  very  great. 
He  loved  it,  and  laboured  and  succeeded  in  it,  but 
he  loved  other  things  better.  He  was  always 
very  watchful  of  social  movements,  in  the  higher 


i  BIOGRAPHICAL  13 

sense  of  the  word,  being  a  very  careful  and  constant 
student  of  those  things  in  which  the  welfare  of  the 
community  was  involved.  He  had  a  keen  appre- 
ciation of  the  pleasures  of  sense,  but  it  always 
seemed  to  me  that  his  chief  delight  was  in  intel- 
lectual sport  and  labour,  and  to  him  this  kind  of 
labour  was  sometimes  in  the  nature  of  sport,  as 
I  think  his  published  writings  occasionally  show. 
He  was  full  of  resource  and  invention  even  to  the 
verge  of  speculation.  He  did  not  care  so  much 
what  other  men  thought,  but  was  always  sure  of 
his  own  ideas,  however  much  they  differed  from 
established  standards,  and  he  had  a  great  contempt 
for  mere  convention  and  social  prescription." 

To  this  may  be  added  the  brief  personal  tribute 
of  another  lifelong  friend  :  "  Simon  Sterne  was  a 
rare  spirit,  and  but  few  men  were  his  equals  intel- 
lectually. As  a  lawyer  he  was  unexcelled,  and  in 
all  economic  questions  bearing  on  the  welfare  of 
society,  he  was  a  recognised  authority,  always 
taking  a  broad,  unselfish,  patriotic  view.  In  his 
home  life  he  was  a  most  charming  host,  brilliant 
in  conversation  and  repartee,  and  yet  so  kindly 
in  his  nature  that  he  never  wounded  the  feelings 
of  those  with  whom  he  came  in  contact.  A  very 
kindly,  generous  friend  was  he — a  very  gentle 
gentleman/' 

The  story  of  Mr.  Sterne's  activity  in  connection 
with  the  Committee  of  Seventy  and  its  work  of 
correction  and  reform  is  told  in  another  chapter. 
But  perhaps  no  better  indication  could  be  given  of 
the  dominance  of  Mr.  Sterne's  ideas  in  the  con- 
structive and  legislative  work  of  the  Committee 


i4  LIFE  OF  SIMON  STERNE      CHAP. 

than  is  afforded  by  the  brief  allusion  to  them  in 
the  following  letter  from  Mr.  William  C.  Whitney, 
then  a  young  lawyer  who  was  coming  into  political 
prominence  as  a  Reform  Democrat : — 

NEW  YORK,  February  21,  1872. 

Dear  Sterne — I  have  to  make  you  my  acknowledg- 
ments and  thanks  for  remembering  me  in  connection 
with  your  meeting  of  last  evening,  but  singularly  enough, 
I  neither  saw  my  name  in  the  newspapers  nor  anywhere 
else,  and  your  note  which  I  received  at  about  five  o'clock 
yesterday  on  my  return  from  the  hall  was  the  first  noti- 
fication I  had  had  upon  the  subject.  It  came  after  I  had 
made  two  engagements  for  the  evening,  one  of  which  it 
was  impossible  for  me  to  postpone,  besides  the  fact  that 
I  am  not  so  thoroughly  up  on  the  questions  involved  in 
the  present  charter  as  to  be  competent  to  speak  upon  it 
at  a  moment's  notice.  My  views  would  be  somewhat  at 
variance  with  yours  I  doubt  not  on  the  whole  subject — 
and  yet  at  this  time  I  see  no  other  result  likely  to  be 
attained  —  but  this  charter  or  none,  or  a  partisan  Re- 
publican charter,  and  I  think  you  will  find  a  great  many 
men  coming  to  your  support  who  will  view  it  in  pre- 
cisely that  light. 

I  particularly  admire  in  this  whole  matter  the  ability  that 
has  been  able  to  push  radical  principles  of  reform  legislation 
into  the  foreground,  and  keep  them  ahead  of  every  rival 
project — so  that  it  is  your  charter  or  nothing — or  at  least 
nothing  desirable. — Hastily  yours, 

W.  C.  WHITNEY. 

From  the  date  of  his  assumption  of  the  duties 
of  Secretary  of  the  Committee  of  Seventy  down  to 
his  last  illness — a  period  of  thirty  years — Mr. 
Sterne  was  continuously  engaged  in  some  work 
prompted  by  the  desire  to  be  of  service  to  his 


i  BIOGRAPHICAL  15 

fellow-men.  It  may  be  said,  without  qualification, 
that  in  all  of  this  varied  and  protracted  labour  for 
the  public  he  willingly  accepted  the  task  that  was 
most  exacting,  and  in  some  of  it  he  left  but  little 
for  his  associates  to  do.  It  is  the  design  of  the 
following  chapters  to  give  some  connected  account 
of  the  chief  public  movements  in  which  Mr.  Sterne 
was  a  leading  figure  in  the  course  of  his  busy  life. 
It  has  been  deemed  most  conducive  to  clearness 
and  compactness  of  statement  to  group  his  chief 
public  activities  under  separate  heads,  rather  than 
to  deal  in  detail  with  the  successive  periods  of  his 
career  in  their  chronological  order.  Broadly  speak- 
ing, the  promotion  of  the  following  great  reforms 
engrossed  most  of  the  time  which  was  not  devoted 
to  the  practice  of  his  profession  : — Reform  in  the 
relations  between  labour  and  capital  ;  reform  in 
the  methods  and  political  standards  of  the  Demo- 
cratic Party  ;  reform  in  the  representative  system 
by  the  introduction  of  some  plan  of  cumulative 
voting  ;  reform  in  the  methods  of  legislation  by 
the  elimination  of  haste  and  confusion  from  the 
introduction  and  consideration  of  bills  ;  reform  in 
municipal  administration  by  increasing  the  influence 
and  enlarging  the  opportunities  of  the  best  men  in 
the  community,  and  reform  in  the  relations  between 
the  great  transportation  companies  and  the  public 
by  greater  explicitness  in  their  published  accounts, 
by  the  substitution  of  stability  for  uncertainty  of 
rates,  and  of  equal  treatment  to  all  for  discrimina- 
tion and  favouritism  to  the  profit  of  a  few.  His 
work  in  all  these  directions  was  of  an  eminently 
practical  kind.  He  kept  in  actual  contact  with 


16  LIFE  OF  SIMON  STERNE      CHAP. 

the  activities  of  commerce  and  with  the  men  who 
had  the  conduct  of  public  affairs,  and  to  legislator 
and  business  man  alike  he  could  talk  with  all  the 
authority  derived  from  an  intimate  knowledge  of 
the  sphere  occupied  by  both.  He  never  accepted 
any  salaried  public  office,  but  he  never  shirked  the 
full  measure  of  responsibility  for  his  performance 
of  public  work.  A  career  so  absolutely  disin- 
terested it  would  be  difficult  to  find  among  the 
men  of  his  generation.  He  literally  spent  himself 
in  the  service  of  the  community,  and  he  had  no 
other  reward  save  the  approval  of  his  associates 
and  fellow-workers,  and  the  consciousness  of  hav- 
ing done  what  he  believed  to  be  his  duty. 

The  brief  duration  of  the  influence  of  the  Com- 
mittee of  Seventy  probably  deepened  Mr.  Sterne's 
conviction  that  the  successful  prosecution  of  the 
work  of  political  reform  was  incompatible  with  the 
acceptance  of  office  by  those  engaged  in  it.  He 
at  least  acted  uniformly  on  the  rule  that  the 
reformer  should  hold  himself  as  free  to  criticise 
those  placed  in  power  by  his  own  efforts  as 
those  whom  they  had  displaced.  When,  pursuant 
to  a  concurrent  resolution  of  the  Legislature 
of  1875,  Governor  Tilden  appointed  a  Commis- 
sion to  devise  a  permanent  and  uniform  plan  for 
the  government  of  the  cities  of  the  State,  Mr. 
Sterne  was  naturally  marked  out  for  one  of  its 
members.  His  associates  on  this  Commission 
were  : — Messrs.  William  M.  Evarts,  Samuel  Hand, 
E.  L.  Godkin,  Edward  Cooper,  John  A.  Lott, 
James  C.  Carter,  Oswald  Otendorfer,  William 
Allen  Butler,  J.  M.  van  Cott,  and  Henry  F. 


i  BIOGRAPHICAL  17 

Dimock — probably  as  thoroughly  capable  a  body 
of  men  as  ever  undertook  the  performance  of 
such  a  public  service.  The  two  years  gratuitous 
work  of  this  Commission,  though  denied  imme- 
diate acceptance,  furnished  much  of  the  material 
for  subsequent  legislation.  The  proposal  which 
doomed  the  Commission's  scheme  to  defeat  was 
that  of  entrusting  the  control  of  the  financial  affairs 
of  great  cities  to  a  Board,  elected  by  the  votes  of 
property  owners  and  rent-payers  only.  As  the 
report  of  the  Commission  put  the  case,  its  members 
had  been  led,  in  view  of  the  manifold  disorders  of 
our  municipal  governments,  and  of  the  notorious 
failure  of  popular  elections  to  supply  the  needed 
correctives,  to  entertain  doubts  whether  the  general 
application  of  the  method  of  universal  suffrage  in 
the  election  of  the  local  guarders  and  trustees  of 
the  financial  interests  of  these  public  corporations 
was  in  accordance  with  sound  principles,  or  con- 
sistent with  our  present  condition,  and  their  con- 
clusion was  that  the  choice  of  these  trustees  of  the 
financial  concerns  of  cities  should  be  lodged  with 
those  who  for  two  years  should  have  paid  an 
annual  tax  on  not  less  than  500  dollars  of  property, 
or  a  yearly  rent  of  not  less  than  250  dollars. 
Mr.  Sterne  proposed,  as  a  substitute  for  this 
scheme,  that,  in  view  of  the  popular  prejudice 
against  property  qualifications,  a  remedy  might  be 
found,  and  the  object  of  giving  to  the  property- 
holding  constituency  a  voice  in  municipal  govern- 
ment might  still  be  attained,  by  the  adoption  of 
some  plan  of  minority  representation  in  the 
election  of  members  of  Boards  of  Aldermen.  It 


1 8  LIFE  OF  SIMON  STERNE       CHAP. 

was  only  when  he  found  that  he  could  not 
induce  his  associates  to  accept  his  views,  that  he 
adopted  what  he  felt  was  the  only  alternative — 
the  creation  of  an  entirely  new  organisation  to 
exercise  a  veto  power  over  expenditures,  leaving  to 
universal  suffrage  the  choice  of  mayor,  aldermen, 
and  all  other  elective  officers,  and  enlarging,  instead 
of  diminishing,  their  functions.  Nevertheless,  all 
through  his  public  career,  there  were  newspaper 
critics  who  insisted  on  accusing  Mr.  Sterne  of  a 
desire  to  restrict  the  suffrage,  and  who  persisted 
in  confounding  the  principles  of  minority  repre- 
sentation with  the  property  qualification  scheme 
of  the  State  Commission  of  1875-76.  Replying 
to  these,  on  many  occasions,  Mr.  Sterne  declared 
the  object  of  minority  representation  to  be  not  the 
restriction  of  the  suffrage,  but  its  extension,  so  as 
to  have  in  our  legislative  halls  a  body  thoroughly 
representative  of  the  whole  community,  and  not 
merely  of  about  one -half,  thus  excluding  the 
minority  from  any  representation  at  all.  He 
pointed  out  that  legislative  bodies  thus  representing 
about  one-half  of  the  people,  and  only  requiring 
for  the  passage  of  any  laws  the  votes  of  a  majority, 
are,  in  fact,  in  the  expression  of  their  will,  merely 
representative  of  about  one-fourth  of  the  people. 
As  it  requires  only  a  majority  vote  of  the  legislative 
body  to  pass  a  law,  this  majority  vote  represents 
about  one-half  of  the  whole  legislative  body,  which 
itself  represents  about  one-half  of  the  people.  It  was 
explained  that  the  system  proposed  by  Mr.  Sterne 
and  many  well-known  publicists  was  intended  to 
give  representation  to  the  whole  community,  so 


i  BIOGRAPHICAL  19 

that  the  legislative  bodies  should  be,  as  it  were,  a 
reduced  photograph  of  that  community,  and  any 
action  taken  by  such  legislative  bodies  should  thus 
represent  the  voice  of  the  great  majority  of  the 
people. 

Even  before  his  work  on  the  Tilden  Commis- 
sion had  begun,  Mr.  Sterne  was  called  upon  to  take 
the  lead  in  a  movement  of  far-reaching  importance, 
whose  purpose  it  was  to  effect  a  satisfactory  re- 
adjustment of  the  relations  between  the  great  trans- 
portation companies  and  the  public.  As  counsel 
for  Mayor  Havemeyer  on  the  questions  arising 
out  of  the  law  requiring  the  city  to  pay  half  the 
cost  of  abating  the  dangerous  nuisance  of  the  rail-  V 
road  occupation  of  Fourth  Avenue,  Mr.  Sterne 
had  become  profoundly  impressed  with  the  extent 
of  the  political  power  wielded  by  the  railroad 
corporations,  and  his  intercourse  with  the  leading 
business  men  of  New  York  brought  to  his 
attention  the  hindrances  to  the  commercial  develop- 
ment of  the  city  interposed  by  the  arbitrary 
character  of  the  prevailing  railroad  methods.  He 
was  one  of  the  founders  of  the  New  York  Cheap 
Transportation  Association,  and  it  was  on  his  motion 
that  the  name  of  this  body  was  changed  in  1877 
to  that  of  the  New  York  Board  of  Trade  and 
Transportation.  In  his  frequent  visits  to  Europe, 
Mr.  Sterne  had  devoted  close  study  to  the  question 
of  the  relation  of  railroad  corporations  to  the 
Government  in  other  countries.  As  early  as  1 8  74 
Mr.  Sterne,  as  chairman  of  a  committee  of  the 
original  Board  of  Trade,  drafted  a  State  Railroad 
Commission  Bill,  and  a  Bill  providing  for  minority 


20  LIFE  OF  SIMON  STERNE      CHAP. 

representation  in  Boards  of  Direction  of  all  cor- 
porations. From  1 874  to  1878,  with  the  exception 
of  one  year,  the  Commission  Bill  was  presented  to 
the  Legislature,  and  argument  made  upon  it  by  its 
author.  By  this  time  the  burdens  laid  by  the 
railroads  on  the  city  of  New  York  had  become 
too  grievous  to  be  borne,  and  merchants  and 
business  men  of  all  degrees  found  it  necessary  to 
demand  an  investigation  of  existing  abuses  as  the 
basis  of  remedial  legislation.  Mr.  Sterne  was 
invited  to  address  a  mass  meeting  called  for  April 
19,  1878,  to  give  expression  to  what  were  virtually 
the  sentiments  of  the  entire  commercial  com- 
munity. The  invitation  was  couched  in  terms 
highly  appreciative  of  the  services  which  Mr. 
Sterne  had  already  rendered  in  his  disinterested 
advocacy  of  the  Railroad  Commission  Bill.  In 
calling  the  meeting  to  order,  Mr.  Charles  Stewart 
Smith  said  that  probably  no  man  in  the  city  had 
given  more  conscientious  study  to  this  over- 
shadowing question  than  Mr.  Sterne.  Mayor 
Ely,  who  occupied  the  chair,  congratulated  an 
unusually  representative  audience  on  the  fact  that 
they  were  to  have  the  privilege  of  listening  to  some 
suggestions  on  the  subject  from  one  who  had  made 
it,  both  theoretically  and  practically,  an  especial 
study.  Out  of  this  meeting  came  the  appoint- 
ment of  the  Legislative  Committee  of  1879, 
known  as  the  Hepburn  Committee,  for  the  purpose 
of  taking  testimony  in  regard  to  the  abuses  in  the 
railway  system  of  the  State.  On  the  appointment 
of  this  committee,  Mr.  Sterne  acceded  to  the 
request  of  the  Chamber  of  Commerce  and  the 


i  BIOGRAPHICAL  21 

Board  of  Trade  to  conduct  the  investigation.  The 
Committee  began  its  sessions  in  Albany  on  March 
26,  1879.  The  two  commercial  bodies  made 
elaborate  and  specific  charges  against  the  manage- 
ment of  the  New  York  railways.  This  was 
followed  by  a  similar  series  of  charges  on  behalf  of 
the  State  Grange  and  Millers  of  Rochester  and 
various  other  interests  in  the  State.  The  Presidents 
of  the  New  York  Central  and  Erie  railways  replied 
by  a  "joint  letter,"  in  which  they  denied  seriatim 
the  justice  of  the  complaints,  and  insisted  that  in- 
vestigation would  show  them  to  be  wholly  ground- 
less. The  Committee  thereupon  met  in  the  city 
of  New  York  to  take  testimony,  and  both  the 
complaining  commercial  bodies  by  their  counsel 
adduced  evidence  in  support  of  their  charges.  The 
railways  were  also  represented  by  counsel,  and  testi- 
mony was  taken  with  the  same  care  and  under  the 
same  rules  of  evidence  as  are  established  in  courts 
of  justice.  The  Committee  sat,  at  short  intervals, 
for  about  nine  months,  and  submitted  at  the  con- 
clusion of  its  labours  an  elaborate  report,  signed 
by  all  the  members  save  one,  substantially  finding 
that  the  charges  of  the  commercial  bodies  and  agri- 
cultural interests  of  the  State  had  been  fully 
proved.  At  the  sessions  of  this  committee,  the 
leading  experts  and  railway  managers  were  ex- 
amined. The  salient  points  of  the  testimony 
were  spread  before  the  community  from  day  to 
day,  and  the  report  of  the  Committee,  together 
with  the  recommendations  which  accompanied  it 
for  legislation,  was  received  as  the  first  serious  and 
well-directed  attempt  to  deal  with  the  great  trans- 


22  LIFE  OF  SIMON  STERNE      CHAP. 

portation  companies  in  a  statesmanlike  manner. 
The  Legislature  of  1881  approved  of  the  report  of 
the  Hepburn  Committee,  and  the  Railroad  Com- 
mission Bill  was  finally  passed  almost  precisely  as 
it  had  been  drafted  by  Mr.  Sterne  in  1874. 

It  is  difficult  to  realise  the  impression  which  the 
work'of  the  Hepburn  Committee  made  on  students 
of  the  railroad  problem  in  every  part  of  the  United 
States  and  throughout  the  world.  For  twenty  years 
after  its  completion,  Mr.  Sterne's  correspondence 
abounds  with  requests  for  copies  of  the  report  and 
testimony,  information  as  to  the  character  of  the 
evidence  on  one  or  other  of  the  special  subjects  of 
investigation,  and  with  acknowledgments  of  the 
obligations  of  the  inquirers  to  the  immense  amount 
of  information  in  regard  to  the  practical  workings  of 
the  railroad  system  which  was  then  elicited.  Ten 
years  after  the  report  was  published,  Mr.  Henry 
D.  Lloyd  makes  the  following  reference  to  it  in  a 
letter  addressed  to  Mr.  Sterne  : — "  I  have  during  the 
past  week  occupied  myself  by  going  all  through 
the  report  and  the  testimony  of  the  Hepburn 
Committee.  You  must  allow  me  to  express  to 
you  the  great  admiration  with  which  the  study  of 
your  work  has  filled  me,  both  for  your  patriotic 
spirit  and  the  immense — I  use  the  word  advisedly 
— the  immense  intellectual  power  it  discloses. 
The  ten  years  which  have  passed  make  its  value 
only  the  more  apparent.  It  would  be  impossible 
to  name  any  public  official  who  has  rendered 
the  State  of  New  York  as  great  service  as 
your  labours  in  this  matter  have  been."  In 
a  subsequent  letter  Mr.  Lloyd  characterises  the 


i  BIOGRAPHICAL  23 

work  before  the  Hepburn  Committee  as  "a  monu- 
ment of  genius  and  industry  which  fills  me  with 
renewed  admiration  of  you  whenever  I  look 
at  it."  From  the  office  of  the  British  Railway 
Commissioners,  in  the  House  of  Lords,  came  a 
request  for  the  printed  proceedings  of  the  Hepburn 
Committee,  and  an  acknowledgment  from  Mr.  J. 
H.  Balfour  Browne  of  the  interest  and  pleasure 
with  which  he  had  read  Mr.  Sterne's  admirable 
"  opening,"  and  with  which  he  had  followed  him 
throughout  the  testimony.  From  New  Zealand 
came  expressions  of  interest  in  the  Hepburn  testi- 
mony and  subsequent  correspondence  with  Mr. 
Sterne  in  regard  to  the  suggestions  which  it  con- 
tained for  the  guidance  of  railway  reformers  at  the 
Antipodes.  From  many  of  the  States  of  this  Union 
came  testimonies  of  the  powerful  interest  which 
had  been  excited  by  the  New  York  methods  of 
dealing  with  the  grievances  against  the  railroad 
companies,  and  from  senators  and  members  of 
Congress  of  the  United  States  came  repeated  calls 
for  the  drafting  of  some  scheme  by  which  national 
control  could  be  exercised  over  the  railroads  en- 
gaged in  interstate  commerce. 

As  Governor  of  the  State  of  New  York,  Mr. 
Cleveland  had  been  thoroughly  familiar  with  Mr. 
Sterne's  work  in  regard  to  the  relations  between 
the  railroads  and  the  State,  and  shortly  after  his 
accession  to  the  Presidency  in  1885,  he  commis- 
sioned Mr.  Sterne  to  report  on  the  relation  of  the 
railways  of  Western  Europe  to  their  Governments. 
This  was  a  subject  to  which  Mr.  Sterne  had  already 
devoted  a  good  deal  of  study,  but  the  special  report 


24  LIFE  OF  SIMON  STERNE      CHAP. 

thus  called  for  enabled  him  to  give  a  unity  and 
comprehensiveness  to  his  treatment  of  the  entire 
question,  which  had  a  special  value  in  shaping  the 
legislation  which  was  already  being  prepared  for  the 
creation  of  an  Interstate  Commerce  Commission. 
Mr.  Sterne  was  consulted  by  Senator  Cullom  and 
his  associates  at  every  stage  of  their  preliminary 
work  of  investigation  into  the  conduct  of  the  rail- 
road business  of  the  country,  and  as  a  witness 
before  their  committee  he  made  the  most  valuable 
contribution  of  the  whole  voluminous  body  of 
testimony.  The  report  of  the  Cullom  committee 
was  based  on  his  work,  and  essential  provisions 
of  the  Interstate  Commerce  Act  were  drafted  by 
him.  After  the  Interstate  Commerce  Commission 
was  formed,  he  was  retained  as  counsel  in  some  of 
the  most  important  suits  between  that  body  and 
the  railroads,  and  during  the  first  ten  years  of  the 
operation  of  the  Act  no  man  was  more  closely 
identified  with  the  details  of  its  judicial  inter- 
pretation. 

The  last  important  public  appointment  conferred 
on  Mr.  Sterne  was  that  of  one  of  the  five  Commis- 
sioners to  report  to  the  State  Legislature  a  plan  for 
improving  the  methods  of  legislation.  This  was 
a  subject  which  had  occupied  Mr.  Sterne's  attention 
for  many  years,  and  in  regard  to  which  he  read  an 
elaborate  paper  before  the  American  Bar  Associa- 
tion at  Saratoga  in  1884.  This  paper  was  an 
elaboration  of  the  views  which  had  found  expression 
several  years  before  that  time  in  various  magazine 
articles  and  addresses  by  Mr.  Sterne.  About  the 
same  time  he  had  reported  on  the  subject  as 


i  BIOGRAPHICAL  25 

chairman  of  a  committee  of  the  Bar  Association  of 
New  York,  and  several  years  later,  as  chairman 
of  a  committee  of  the  New  York  Board  of 
Trade  and  Transportation,  he  had  submitted 
suggestions  for  amendments  to  the  constitu- 
tion designed  to  methodise  legislation.  When 
Governor  Morton,  therefore,  in  the  summer  of 
1895  appointed  him  one  of  the  commissioners 
provided  for  by  an  Act  of  the  Legislature  of 
that  year,  Mr.  Sterne  threw  himself  into  the  work 
with  even  more  than  his  usual  ardour.  One  of 
the  first  steps  he  took  was  to  get  the  consent  of 
his  associates  to  allow  him  to  make  a  systematic 
study  of  the  legislative  methods  and  procedure  of 
the  countries  of  Europe.  This  he  followed  up  by 
a  request  to  Mr.  Richard  Olney,  then  Secretary  of 
State,  to  make  a  direct  inquiry  to  the  various 
persons  in  the  diplomatic  service  of  the  United 
States  in  the  countries  of  Europe  as  to  the  methods, 
rules,  and  requirements  of  legislation  adopted  in 
the  countries  in  which  they  exercise  their  official 
functions.  In  response  to  an  inquiry  to  the  Depart- 
ment of  State  as  to  the  precise  purpose  of  this 
investigation,  Mr.  Sterne  said  :  "In  this  country 
we  suffer  exceptionally  from  slipshod  and  corrupt 
legislation.  I  assume,  indeed  I  know,  that  the 
paramount  cause  for  this  is  absence  of  method, 
responsibility,  and  proper  rules  for  originating  and 
giving  notice  of  proposed  legislation  if  it  is  to 
affect  personal  or  local  interests  ;  also  in  defective 
formulation  of  the  Acts  and  the  absence  of  proper 
machinery  for  ascertaining  the  effect  of  proposed 
changes  in  the  law,  and  in  investigating  pending 


26  LIFE  OF  SIMON  STERNE       CHAP. 

progress  of  legislation  through  the  Chambers.  As 
to  public  legislation,  there  is  an  entire  absence 
of  coupling  the  due  measure  of  responsibility 
for  legislation  with  the  party  in  power.  Other 
countries  which  have  legislative  bodies  have  ad- 
vanced beyond  ourselves  in  the  scientific  treatment 
of  legislative  matters.  This  is  due  to  improved 
methods,  and  these  methods  do  not  rest  in  un- 
written tradition,  but  in  formulated  rules  and 
prescribed  forms  which  are  accessible  to  a  friendly 
governmental  inquiry."  He  therefore  submitted 
a  series  of  inquiries  to  be  addressed  to  foreign 
Governments  in  regard  to  the  prevailing  rules 
of  their  legislative  procedure.  The  Department  of 
State  lent  itself  very  cordially  to  the  prosecution  of 
this  inquiry,  and  within  a  few  months  after  it  was 
instituted  elaborate  replies  were  received  from  the 
Ministers,  Charges  d'Affaires,  or  Secretaries  of 
Legation  at  London,  Paris,  Berlin,  Rome,  Stock- 
holm, Copenhagen,  Brussels,  the  Hague,  Vienna, 
Madrid,  Lisbon,  Athens,  Tokyo,  Mexico  City, 
and  Berne,  as  well  as  from  the  consular  officers  of 
the  Government  in  Australia  and  Canada.  In  the 
same  spirit  of  thorough  and  minute  study  of  the 
subject  in  hand,  which  was  so  characteristic  of  Mr. 
Sterne,  inquiries  were  addressed  to  the  governors 
of  most  of  the  States  in  the  Union  for  copies  of 
the  legislative  manuals  and  other  rules  or  consti- 
tutional requirements  bearing  on  the  question  of 
methods  of  legislation. 

In  studying  the  mode  of  procedure  adopted  by 
Mr.  Sterne  in  this  and  other  departments  of  his 
public  activity,  one  cannot  fail  to  be  impressed  at 


i  BIOGRAPHICAL  27 

once  with  his  supreme  conscientiousness  and  his 
amazing  capacity  for  work.  The  labour  incident 
to  a  large  and  successful  legal  practice,  dealing 
mainly  with  matters  of  great  complexity  and  im- 
portance, would  have  been  to  most  men  a  sufficient 
draft  on  their  intellectual  energy.  But  Mr.  Sterne's 
appetite  for  work  was  so  insatiable  that  he  found 
time  to  duplicate  in  unrequited  public  effort  quite 
as  much  energy  as  was  required  for  the  discharge 
of  his  professional  obligations.  He  "  stumped  " 
the  Eastern  States  for  Tilden  in  the  Presidential 
campaign  of  1876,  and  was  one  of  the  most  active 
and  earnest  defenders  of  the  legality  and  finality 
of  the  election  of  the  Democratic  ticket  in  that 
year.  He  threw  himself  with  equal  energy  into 
the  campaign  for  Hancock  in  1880,  and  the  cause 
of  Democracy,  as  represented  by  Cleveland  in  1 884 
and  1888,  had  no  more  convincing  or  untiring 
advocate  than  he.  In  the  campaign  of  1896  he 
gave  renewed  evidence  of  how  deeply  interested 
he  was  in  keeping  alive  the  traditions  of  pure 
Democracy  by  devoting  himself,  without  stint  of 
time  or  energy,  to  the  support  of  the  ticket  headed 
by  John  M.  Palmer. 

The  campaign  of  1896  was  no  sooner  over  than 
we  find  Mr.  Sterne  engaged  in  the  preparation  of 
resolutions  relating  to  the  draft  of  the  Greater  New 
York  Charter,  and  in  protracted  conferences  bear- 
ing on  the  same  subject,  while  also  serving  on  and 
doing  as  usual  most  of  the  work  of  a  committee 
appointed  to  consider  the  question  of  high  build- 
ings in  the  city  of  New  York.  It  is  difficult  to 
convey  a  satisfactory  idea  of  the  exacting  character 


28  LIFE  OF  SIMON  STERNE      CHAP. 

of  the  public  duties  accepted  by  Mr.  Sterne  to 
those  who  have  had  little  or  no  experience  of  what 
the  work  of  committees,  the  drafting  of  resolutions, 
the  addressing  of  public  meetings,  and  the  active 
participation  in  the  never-ending  labour  of  social, 
political,  legislative,  or  administrative  reform  really 
mean.  Mr.  Sterne's  private  correspondence  con- 
tains almost  from  day  to  day  some  call  to  serve  on 
a  committee,  to  speak  at  a  public  dinner,  to  act  as 
trustee  of  a  club,  to  do  a  piece  of  work  for  a 
colleague,  to  contribute  funds  for  a  movement,  or 
to  perform  his  part  in  one  or  other  branch  of  the 
multifarious  activities  for  which  his  fellow-citizens 
appear  to  have  regarded  him  as  specially  fitted. 
Considering  the  ardour  which  Mr.  Sterne  displayed 
in  the  doing  of  anything  to  which  he  set  his  hand, 
the  drain  both  on  his  mental  and  physical  resources 
which  all  this  extra  labour  involved  could  not  fail 
to  prove  exhausting. 

Without  going  into  tedious  details  it  is  impos- 
sible to  do  more  than  superficially  indicate  the 
number  and  variety  of  the  services  which  Mr. 
Sterne  performed  for  the  community  in  which  he 
lived.  In  addition  to  those  which  are  considered 
at  some  length  in  the  succeeding  pages,  his  share 
in  the  work  of  preserving  the  Adirondack  forests 
will  be  gratefully  remembered,  as  also  the  yeoman's 
service  he  did  in  exposing  the  Ramapo  water  job, 
and  in  resisting  the  Amsterdam  -  Avenue  grab. 
The  calls  made  upon  him  for  public  service  were 
at  no  time  more  numerous  than  in  the  years 
when  his  system  had  begun  to  yield  to  the  ap- 
proaches of  disease,  and  when  perhaps  a  timely 


i  BIOGRAPHICAL  29 

regard  to  the  warnings  of  nature  might  have 
lengthened  his  life.  Probably  no  man  ever  opposed 
to  the  advance  of  physical  infirmity  a  more  im- 
perious will  or  a  more  masterful  resolution  to 
refuse  to  be  conquered  by  bodily  weakness.  But 
after  surmounting  one  protracted  and  painful 
malady,  the  finely  tempered  and  resolute  spirit 
had  to  yield  at  last,  and  on  September  22,  1901, 
Simon  Sterne  passed  peacefully  away,  still  fresh  in 
mind,  hopeful  and  genial  in  disposition,  young  in 
vigour,  and  not  old  in  years.  He  left  to  mourn 
his  loss  a  widow  who  in  thirty-one  years  of  married 
life  had  been  the  unfailing  sympathiser  in  all  his 
aspirations,  and  a  daughter  who  inherited  a  notable 
share  of  his  ability.  The  feeling  which  the  loss  of 
such  a  man  inspires  in  the  community  for  whose 
interests  he  laboured  so  faithfully  and  so  long  is 
necessarily  confined  to  those  who  were  his  co- 
workers  in  the  various  causes  with  which  he  was 
identified,  and  among  these  the  death  of  Mr.  Simon 
Sterne  left  a  feeling  of  sorrow  all  the  more  profound 
from  the  conviction  that,  in  sober  literalness,  he 
left  a  place  which  no  other  man  could  adequately 
fill. 

The  best  known  products  of  Mr.  Sterne's 
literary  activity  are  the  two  volumes  to  which 
reference  has  already  been  made  : — 

On  Representative  Government  and  Personal  Repre- 
sentation, 1871.  J.  B.  Lippincott  and  Co.,  Philadelphia. 

Constitutional  History  and  Political  Development  of 
the  United  States,  1882.  1st  edition.  Cassell,  Fetter, 
and  Galpin,  London.  1888.  4th  edition.  G.  P.  Put- 
nam's Sons,  New  York. 


30  LIFE  OF  SIMON  STERNE      CHAP. 

But  in  addition  to  these,  Mr.  Sterne  was  the 
author  of  a  large  number  of  pamphlets,  magazine 
and  newspaper  articles,  contributions  to  cyclo- 
pedias, and  introductions  to  other  men's  work 
relating,  more  or  less  intimately,  to  the  subjects 
which,  from  time  to  time,  engaged  his  study  and 
enlisted  his  efforts.  A  complete  list  of  these  would 
be  a  highly  formidable  one,  and  the  one  appended 
gives  a  decidedly  impressive  indication  of  the 
broad  range  of  the  multifarious  avocations  of  Mr. 
Sterne's  busy  life.  The  list  is  given  in  its  chrono- 
logical order,  omitting  fugitive  contributions  to 
newspapers,  and  magazine  articles  which  were  not 
separately  published  : — 

The  Tariff:  its  evils  and  their  remedy.     1861. 

Law  and  Lawyers  in  the  United  States.  New  York 
Social  Science  Review.  July  1865. 

Report  to  the  Constitutional  Convention  (New  York) 
on  Personal  Representation.  1867. 

Representative  Government  :  its  evils  and  their 
remedy.  Lecture  at  Cooper  Union.  1869. 

Legal  Responsibility  and  Accountability.  A  paper 
read  before  the  Medico-Legal  Society  of  New  York. 
November  26,  1873. 

Arguments  for  New  York  Cheap  Transportation  As- 
sociation on  Bill  to  provide  for  Railway  Commissioners 
and  for  Minority  Representation  in  Boards  of  Directors  of 
R.  R.  Co.'s.  March  1874. 

Arguments  for  New  York  Cheap  Transportation  As- 
sociation on  Bill  to  provide  for  Railway  Commissioners. 
March  28,  1876. 

Report  of  Commission  to  devise  plan  for  the  Govern- 
ment of  the  Cities  of  the  State  of  New  York.  March  6, 
1877. 

Argument   before  New  York  Assembly  Committee 


i  BIOGRAPHICAL  31 

on  Railways  on  Bill  to  create  Board  of  Railway  Com- 
missioners. March  28,  1877. 

Speech  before  Assembly  Committee  on  Railways  on 
Bill  to  organise  Board  of  Railway  Commissioners.  July 
18,  1877. 

The  Administration  of  American  Cities.  Interna- 
tional Review^  September  1877. 

Speeches  at  Taxpayers'  Meeting  at  Steinway  Hall  in 
favour  of  Constitutional  Amendments  relating  to  the 
Government  of  Cities.  October  23,  1877. 

Suffrage  in  Cities.  A  Lecture  delivered  at  Cooper 
Institute,  December  15,  1877.  Economic  Monograph^ 
VII.  G.  P.  Putnam's  Sons.  1878. 

Opinion  on  Constitutionality  of  separate  submission 
of  6th  section  of  Constitutional  Amendment  relating  to 
the  Government  of  Cities.  January  31,  1878. 

Argument  before  Assembly  Committee  on  Railways 
on  Bill  entitled  "  An  Act  relating  to  Horse  Railroads  in 
the  Cities  of  New  York  and  Brooklyn."  March  5,  1878. 

Argument  before  Committee  on  Railroads  on  Bill  to 
create  a  Board  of  Railroad  Commissioners.  March  7. 
1878. 

The  Railway  in  its  Relation  to  Public  and  Private 
Interests.  Address  before  Merchants  and  Business  Men 
of  New  York  at  Steinway  Hall,  April  19,  1878. 

Hindrances  to  Prosperity,  or  Causes  which  retard 
Financial  and  Political  Reforms  in  the  United  States. 
Address  before  New  York  Free  Trade  Club,  November 
21,  1878.  Economic  Monograph^  XIII.  G.  P.  Putnam's 
Sons.  1879. 

Our  Methods  of  Legislation  and  their  Defects.  Paper 
read  before  the  New  York  Municipal  Society.  January 
6,  1879. 

The  English  Methods  of  Legislation  compared  with 
the  American.  Address  before  the  Philadelphia  Social 
Science  Association,  March  13,  1879.  Penn.  Monthly^ 
May  1879. 

The  Railway  Problem  in   the  State  of  New  York. 


32  LIFE  OF  SIMON  STERNE      CHAP. 

Opening  Statement  before  Assembly  Special  Committee 
on  Railroads  on  behalf  of  Chamber  of  Commerce  and 
Board  of  Trade  and  Transportation  of  New  York. 
June  12,  1879. 

Railroad  Pooling  and  Discriminations.  Information 
in  answer  to  questions  propounded  by  the  Chief  of  the 
Bureau  of  Statistics,  Treasury  Department  of  the  United 
States.  June  27,  1879. 

Closing  Argument  on  behalf  of  Chamber  of  Com- 
merce and  Board  of  Trade  and  Transportation  of  New 
York  before  Special  Assembly  Committee  on  Railroads. 
December  2  and  3,  1879. 

Address  on  Interstate  Railroad  Traffic,  before  the 
National  Board  of  Trade.  December  n,  1879. 

The  Corporation :  its  Benefits,  its  Evils  :  as  Bene- 
factor, as  Monopolist.  Lecture  delivered  before  the 
General  Society  of  Mechanics  and  Tradesmen.  January 
8,  1880. 

The  Railway  Problem.  National  Quarterly  Review. 
April  1880. 

Administration  of  American  Cities.  From  Lalor's 
Cyclopedia  of  Political  Science,  Political  Economy,  and 
United  States  History.  1 8  8 1 . 

Remarks  at  Special  Meeting  of  Board  of  Directors  of 
New  York  Board  of  Trade  and  Transportation  on  Death 
of  Peter  Cooper.  April  5,  1883. 

Representation.  From  Lalor's  Cyclopedia  of  Political 
Science,  Political  Economy,  and  United  States  History. 

1883. 

Legislation.  From  Lalor's  Cyclopedia  of  Political  Science, 
Political  Economy,  and  United  States  History.  1883. 

Monopolies.  From  Lalor's  Cyclopedia  of  Political 
Science,  Political  Economy,  and  United  States  History. 
1883. 

Introduction  to  Wealth-Creation,  by  A.  Mongredian. 
Cassell,  Petter,  Galpin  and  Co.  1883. 

Crude  Methods  of  Legislation.  Article  in  the  North 
American  Review.  August  1883. 


i  BIOGRAPHICAL  33 

Railways.  From  Lalor's  Cyclopedia  of  Political  Science^ 
Political  Economy ,  and  United  States  History.  1884. 

Remarks  at  I4th  Annual  Meeting  of  the  National 
Board  of  Trade  at  Washington.  January  25,  1884. 

Arguments  before  Committee  on  Commerce  in  rela- 
tion to  Bills  referred  to  the  Committee  proposing  Con- 
gressional Regulation  of  Interstate  Commerce.  January 
29,  1884. 

The  Prevention  of  Defective  and  Slipshod  Legislation. 
Paper  read  before  American  Bar  Association  at  Saratoga, 
New  York.  August  24,  1884.  G.  P.  Putnam  and 
Sons,  1885. 

Memorial  Resolutions  and  Remarks  on  Death  of 
Friedrich  Kapp,  at  meeting  of  Medico -Legal  Society. 
November  19,  1884. 

Report  of  Committee  of  Bar  Association  of  City  of 
New  York  on  Plan  for  Improving  Methods  of  Legisla- 
tion of  this  State.  March  10,  1885. 

Address  before  Joint-Committee  on  Cities  of  Senate 
and  Assembly  on  the  New  York  Park  Bill.  March  25, 
1885. 

The  Railway  Question  :  Statement  to  the  United 
States  Senate  Select  Committee  on  Interest  to  Commerce 
at  Fifth  Avenue  Hotel,  New  York  City.  May  21, 
1885. 

Report  to  President  Cleveland  on  the  Relations  of  the 
Governments  of  the  Nations  of  Western  Europe  to  the 
Railways.  January  18,  1887. 

Address  before  German  American  Citizens'  Associa- 
tion on  the  proposed  Constitutional  Convention  and  the 
work  before  it.  February  4,  1887. 

Some  Curious  Phases  of  the  Railway  Question  in 
Europe.  Paper  read  at  the  meeting  of  the  American 
Economic  Association  at  Boston.  May  24,  1887. 
Quarterly  Journal  of  Economics^  July  1887. 

Protection — A  Delusion  and  a  Snare.  Address  before 
Harlem  Democratic  Club.  May  8,  1888. 

Nicaragua   Canal,    Argument    in    opposition    to   the 

D 


34  LIFE  OF  SIMON  STERNE    CHAP,  i 

Signature  by  the  President  of  the  United  States  of 
Bill  to  incorporate  the  Maritime  Canal  Company  of 
Nicaragua.  February  14,  1889. 

Oppressive  Telephone  Charges.  Speech  before  New 
York  Assembly  Committee  on  General  Laws.  January 

3o,  i889. 

Railway  Reorganisation.  The  Forum.  September 
1890. 

The  Greathead  Tunnel  Electric  Railway.  The  Forum. 
August  1891. 

The  Salaries  of  the  United  States  Supreme  Court 
Justices.  The  Counsellor^  of  the  New  York  Law  School. 
January  1892. 

Recent  Railroad  Failures  and  their  Lessons.  The 
Forum.  March  1894. 

Suggestions  for  Constitutional  Provisions  to  Methodise 
Legislation.  Report  of  the  Special  Committee  of  the 
New  York  Board  of  Trade  and  Transportation,  adopted 
May  9,  1894. 

Representative  Reform  in  its  Relation  to  the  Civil 
Service.  Proportional  Representation  Review.  Decem- 
ber 1894. 

The  Relation  of  the  Railroads  to  the  State.  Paper 
read  before  the  Wharton  School,  University  of  Pennsyl- 
vania. November  27,  1895. 

The  Telephone  Bill.  Argument  before  New  York 
Assembly  Committees.  February  5  and  19,  1895. 

Proportional  Representation.  Proportional  Represen- 
tation Review.  September  1895. 

Report  of  the  Commission  to  Recommend  Changes 
in  Methods  of  Legislation.  November  30,  1895. 

TheJReconquest  of  New  York  by  Tammany.  From 
The  Forum.  January  1898. 


CHAPTER   II 

CONTRIBUTIONS    TO    THE    SOLUTION    OF    THE 
LABOUR    PROBLEM 

THE  dominant  impulse  of  Mr.  Sterne's  earliest 
activity  in  the  field  of  public  usefulness  was  a 
desire  to  diffuse  among  the  common  people  some 
intelligent  conception  of  the  truths  of  political 
economy.  The  Cooper  Institute  was  in  the  early 
sixties,  as  it  is  to-day,  a  centre  of  diverse  agencies 
of  popular  education,  but  at  least  one  of  these 
must  strike  the  present  generation  as  being  char- 
acteristic either  of  different  habits  of  mind  or 
different  racial  elements  from  those  which  enter 
into  the  composition  of  the  wage -earning  com- 
munity of  New  York  to-day.  That  successive 
courses  of  lectures  on  social  and  political  science 
should  have  been  attended  by  audiences  consisting 
of  from  1000  to  2000  working  people,  suggests 
the  existence  of  a  higher  degree  of  intellectual 
curiosity  than  now  prevails  among  the  same  class, 
if  not  also  a  higher  level  of  mental  capacity. 
Doubtless  much  of  the  popularity  of  these  lectures 
was  due  to  the  personality  of  the  lecturer — to  the 
impressive  earnestness,  the  convincing  force,  and 

35 


36  LIFE  OF  SIMON  STERNE      CHAP. 

the  contagious  enthusiasm  which  he  brought  to 
the  exposition  of  what  is  commonly  deemed  one 
of  the  least  attractive  departments  of  human  know- 
ledge. But  there  must  have  been,  a  generation 
ago,  a  greater  openness  of  mind  than  exists  to-day 
among  the  working  population  of  New  York  in 
regard  to  what  has  come  to  be  known  as  the 
labour  question,  to  make  it  possible  for  them  to 
fill  the  benches,  week  after  week,  at  Mr.  Sterne's 
lectures.  His  treatment  of  this  question  was 
deficient  neither  in  frankness  nor  in  fairness,  and 
it  dealt  very  unceremoniously  with  some  of  the 
cherished  illusions  of  organised  labour.  As  a 
contribution  to  the  better  understanding  of  a 
question  which  is  every  year  becoming  more  acute 
in  the  United  States,  the  following  synopsis  of 
some  of  these  lectures  may  not  be  without  value. 
As  a  revelation  of  the  extraordinary  maturity  of 
thought  and  judgment  attained  by  a  young  man, 
still  in  his  twenty-fifth  year  when  the  last  of  this 
course  was  delivered,  their  subject-matter  is  of 
more  than  ordinary  interest. 

The  first  course,  which  consisted  of  six  lectures, 
was  delivered  in  the  spring  of  1863,  at  the  invita- 
tion of  the  Board  of  Trustees  of  the  Cooper 
Institute  of  the  city  of  New  York.  The  second 
course  was  delivered  in  1864,  at  the  invitation  of 
the  Association  for  the  Advancement  of  Social 
and  Political  Science,  and  consisted  of  four  lectures. 
The  third  course  was  delivered  in  the  spring  of 
1865,  and  was  published  in  full  in  the  Trades 
Advocate^  the  official  organ  of  the  working-men's 
union,  a  journal  devoted  to  the  interests  of  the 


ii  THE  LABOUR  PROBLEM  37 

working  classes,  published  in  the  city  of  New 
York.  This  latter  course,  bearing  more  par- 
ticularly on  the  problems  of  our  own  time,  is 
selected  for  analysis.  To  appreciate  the  value 
of  the  instruction  therein  conveyed,  the  fact  must 
be  borne  in  mind  that  it  was  addressed  to  an 
audience  of  working  people,  ignorant,  for  the 
most  part,  of  the  rudiments  of  political  economy, 
and  presumably  under  the  influence  of  false  im- 
pressions in  regard  to  the  share  due  to  labour  in 
the  division  of  the  profits  of  industrial  enterprise. 
After  an  introductory  sketch  of  the  natural  growth 
of  the  subdivision  of  labour  and  the  accumulation 
of  capital,  Mr.  Sterne  pointed  out  that  it  was  part ' 
of  the  harmony  of  the  social  organisation  that 
man  is  not  remunerated  in  proportion  to  the 
amount  of  effort  or  labour  he  has  expended  on  a 
commodity,  but  according  to  the  estimate  formed 
by  society  of  the  value  of  his  services.  All  labour^ 
to  be  productive,  must  be  free.  Every  artificial 
enactment  which  interferes  with  that  right  on  the 
specious  pretext  of  better  regulating  the  partition 
or  remuneration  of  labourers,  is  radically  false  and 
injurious.  There  is  not  a  commercial  privilege 
nor  industrial  monopoly  which  is  not  a  source  of 
suffering  and  misery  to  some  one.  The  interest 
of  man  should  be  the  sole  arbiter  of  his  conduct. 
Let  that  be  rightly  understood,  and  he  will  always 
be  a  useful  member  of  society. 

The  labourer  has  no  right  to  any  greater  or 
higher  remuneration  than  such  as  results  either 
from  the  exercise  of  his  muscular  force,  his  manual 
dexterity,  the  application  of  his  intelligence,  the 


38  LIFE  OF  SIMON  STERNE      CHAP. 

loan  of  his  capital,  or  the  advancement  of  his 
credit.  The  results  obtained  through  natural 
agents  or  the  collective  power  of  society,  in  their 
nature  gratuitous,  should  and  do  inure  to  the 
benefit  of  mankind  at  large.  In  proportion  as  the 
intellect  of  man  is  developed,  he  calls  to  his  aid 
natural  forces  which  were  wholly  unproductive 
before  he  made  them  subservient  to  his  will.  For 
instance,  he  has  utilised  the  waterfall  by  compelling 
it  to  turn  a  mill.  He  makes  use  of  the  evaporation 
of  water  to  drive  his  engines,  and  he  has  discovered 
an  invisible  agent  to  carry  his  messages  with  in- 
calculable speed,  making  him  more  powerful  than 
the  ancient  Greeks  deemed  their  gods.  If  it  were 
not  for  the  aid  of  natural  forces  which,  from  time 
to  time,  have  been  subjected  by  the  intelligence  of 
man,  the  greater  part  of  his  wants  would  have  to 
remain  unsatisfied.  All  these  natural  forces  be- 
come in  a  short  time  gratuitous.  All  can  to-day 
employ  and  make  use  of  steam  or  electricity  with- 
out having  to  pay  for  their  use.  We  are  com- 
pelled to  pay  for  the  steam-engine  and  the  Morse 
instrument,  but  the  price  simply  represents  the 
labour  expended  upon  the  manufacture  of  an 
implement  which  facilitates  the  employment  of  a 
natural  force.  We  simply  pay  for  the  shackles 
which  hold  the  slave  in  subjection. 

Only  second  to  the  employment  of  natural 
forces  is  the  immense  aid  to  production  arising 
from  the  division  of  employment.  This  increase 
of  productive  power  is  largely  due  to  the  increased 
dexterity  of  each  particular  workman,  and  it  neces- 
sarily tends  to  lessen  the  price  of  the  product  ; 


ii  THE  LABOUR  PROBLEM  39 

besides  enabling  the  consumer  to  obtain  a  commodity 
at  a  less  expenditure  of  effort  than  would  otherwise 
be  necessary,  the  division  of  employment  raises  the 
wages  of  labour  and  adds  to  the  productiveness  of 
capital.  Wherever  a  single  person  is  found  acting 
at  the  same  time  as  mason,  farmer,  weaver,  and 
shoemaker,  the  condition  of  society  to  which  he 
belongs  is  necessarily  barbarous.  In  other  words, 
the  division  of  labour  is  the  associate  of  civilisation, 
and  both  cause  and  effect  of  progress.  If  com- 
merce were  entirely  free,  it  was  Mr.  Sterne's  con- 
viction that  a  division  of  employments  would  take 
place  between  nations  similar  to  that  which  exists 
between  individuals,  and  the  mutual  dependence  of 
the  civilised  countries  of  the  world  would  be  such 
that  wars  between  them  would  be  as  rare  an  occur- 
rence as  violent  differences  between  bakers  and 
shoemakers.  Labour  is  an  article  of  merchandise 
with  which  the  labourer  comes  into  market  and 
disposes  of  to  the  highest  bidder.  The  value  of  it, 
like  its  results,  depends  principally  upon  the  cost 
of  production,  arid  the  skill,  ingenuity,  and  industry 
of  the  labourer.  The  price  of  it  is  fixed  like  that 
of  any  other  commodity  purchased  and  sold  accord- 
ing to  the  law  of  supply  and  demand.  The  larger 
the  number  of  persons  who  seek  a  particular  kind 
of  employment,  the  greater  the  competition  between 
the  labourers,  and  the  lower  the  salary  in  that 
branch  of  human  activity. 

When  a  commodity  is  to  be  produced,  two 
things  are  necessary  for  its  production — capital  and 
labour.  In  the  present  organisation  of  society, 
these  two  elements  are  generally  supplied  by 


40  LIFE  OF  SIMON  STERNE      CHAP. 

different  classes.  The  capitalist  advances  the 
necessary  raw  material — the  tools  and  buildings 
required  for  the  manufacture  of  the  commodity. 
The  labourer  provides  his  labour,  more  or  less 
skilled,  and  which  is  more  or  less  remunerative  in 
proportion  to  his  skill.  The  union  of  these  forces 
produces  a  commodity,  an  article  of  merchandise, 
which  is  the  joint  property  of  the  labourer  and  the 
capitalist.  Wages  being  simply  the  payment  by 
the  capitalist  to  the  labourer  of  his  presumed  share 
in  the  products,  the  justice  of  the  share  thus 
apportioned  obviously  involves  much  matter  of 
controversy.  That  this  sum  can  never  amount  to 
the  full  value  of  this  share  is  both  natural  and 
just,  otherwise  there  would  be  no  compensation  to 
the  capitalist  for  the  considerable  element  of  risk 
which  his  advantages  entail.  For  example,  a  vessel 
has  to  be  built  or  a  house  to  be  erected.  The 
capitalist  supplies  the  necessary  implements  and 
machinery  as  well  as  the  material  to  work  upon. 
The  mechanic  whose  only  fortune  consists  in  his 
skill  and  industry,  supplies  the  labour.  The 
capitalist  must  be  careful  not  to  expend  his  all  in 
the  enterprise,  and  must  have  sufficient  to  live  upon 
until  at  least  part  of  the  work  is  finished,  and  to 
preserve  him  from  poverty  if  the  enterprise  should 
result  in  a  loss.  But  the  labourer  cannot  wait  six 
months  or  a  year  before  he  receives  a  dollar  as  his 
compensation,  nor  can  he  run  the  risk  of  being 
deprived  of  all  remuneration  in  the  event  of  no 
profit  being  forthcoming.  He,  therefore,  says  to 
the  capitalist :  "  I  will  renounce  all  extraordinary 
profits  on  condition  that  you  assume  all  the  risk, 


ii  THE  LABOUR  PROBLEM  41 

and  will  take  a  smaller  sum  as  my  share  in  con- 
sideration of  the  security  I  enjoy  of  being  able  to 
supply  myself  and  family  with  necessary  food, 
clothing,  and  shelter,  by  reason  of  your  paying  me 
a  fixed  rate  for  my  co-operation  in  the  work  of 
production."  Both  the  capitalist  and  the  labourer 
have  been  benefited  by  this  interchange  of  services. 
The  capitalist  has  the  sole  direction  of  affairs  and 
the  hope  of  larger  profit.  The  labourer  gains  the 
certainty  of  making  a  livelihood  instead  of  running 
the  risk  of  an  entire  loss  of  his  efforts,  should  the 
enterprise  prove  a  failure. 

The  cost  of  production  regulates  the  price  of 
all  things.  The  oscillation  around  this  central 
point  regulates  what  we  call  profit  or  loss.  The 
cost  of  production  regulates  the  price  of  labour, 
or  in  other  words,  the  value  of  the  productive 
services  of  the  human  faculties,  precisely  as  it  regu- 
lates the  price  of  a  steam-engine.  In  searching, 
therefore,  for  the  necessary  elements  entering  into 
this  price  of  production,  we  must  pay  attention 
not  only  to  the  cost  of  maintenance  but  also  to  the 
cost  of  reproduction.  In  the  case  of  a  railroad 
enterprise,  it  is  not  only  necessary  to  calculate  the 
cost  of  surveying  and  laying  out  the  road,  the  cost 
of  putting  down  sleepers  and  laying  the  rails,  in 
building  rolling  stock  and  machine  shops,  but  also 
the  wear  and  tear  on  all  these  things,  and  the 
budget  of  the  road  must  provide  for  their  renewal. 
Thus  the  working-man  must  have  sufficient  not 
only  to  maintain  himself,  but  he  must  also  be 
enabled  to  support  his  family.  If  he  does  not  earn 
sufficient  to  enable  him  to  do  this,  he  cannot  be 


42  LIFE  OF  SIMON  STERNE      CHAP. 

deemed  prosperous,  as  a  new  generation  does  not 
supply  the  wear  and  tear  of  the  old  one.  The 
lowest  ebb  to  which  the  remuneration  of  unskilled 
labour  can  permanently  sink  is  the  cost  of  main- 
taining life  ;  and  between  that  level  and  the  highest 
point  of  remuneration  we  meet  with  all  grades  of 
pay  depending  upon  the  value  to  mankind  of  the 
services  of  the  labourer. 

Here  Mr.  Sterne  touched  what  he  recognised 
as  a  source  of  discontent  and  heartburnings  to 
many  a  mechanic,  and  he  went  on  to  show  that 
this  difference  of  remuneration  was  in  strict  con- 
formity with  the  principles  of  justice  and  equity. 
He  asked,  what  would  any  journeyman  say  if  his 
employer  put  an  apprentice  on  a  par  with  himself 
with  reference  to  wages  ?  He  would  think  it 
clearly  unjust.  Why  is  it  unjust  ?  Simply  because 
the  apprentice  has  not  yet  earned  this  extra  salary 
by  the  development  of  his  intellect,  the  devotion 
of  his  time,  or  the  service  he  renders.  In  the 
industrial  world  it  is  conceded  to  be  necessary  that 
wages  should  correspond  with  services.  Such  a 
world  in  which  there  should  be  an  equality  of  wages 
and  remuneration  would  be  a  sort  of  fool's  para- 
dise in  which  the  indolent,  the  stupid,  and  the 
improvident  would  fare  as  well  as  the  enterprising, 
the  intelligent,  and  the  provident.  But  how  is  it 
with  the  remuneration  of  persons  who  do  not 
belong  to  the  industrial  class  ?  Are  they  entitled 
to  so  disproportioned  a  share  of  this  world's  goods 
as  they  appear  to  enjoy,  and,  if  so,  why  and  how 
can  this  be  reconciled  with  the  principles  of  justice  ? 
The  answer  is  that  consideration  must  be  taken  of 


ii  THE  LABOUR  PROBLEM  43 

the  amount  of  time  necessary  for  the  education  of 
the  professional  man,  the  long  years  of  toil,  and 
unremitting  and  unrequited  endeavour  of  one  who 
devotes  himself  to  a  liberal  profession.  Then  there 
is  the  uncertainty  of  success  and  the  increased 
responsibility  of  his  position  ;  the  greater  strain 
upon  the  intellectual  faculties,  and  the  greater 
waste  of  the  system  than  in  any  manual  employ- 
ment. These  strains  and  waste  necessitate  periods 
of  rest  and  leisure  to  restore  the  needful  mental 
vigour,  no  less  than  the  use  of  a  greater  variety 
and  more  expensive  character  of  food  than  would 
be  sufficient  for  a  day  labourer.  If  a  law  were 
passed  compelling  society  to  pay  the  same  remuner- 
ation to  every  class  of  labourers,  no  one  would 
devote  himself  to  employments  requiring  long  and 
costly  preparation,  because  by  less  study  and  effort 
he  could  obtain  the  same  reward.  Society  would, 
therefore,  quickly  relapse  into  barbarism. 

The  rate  of  wages  being  determined  by  natural 
laws,  it  follows  that  for  their  unimpeded  action  the 
most  complete  freedom  is  essential.  As  the  rate  of 
wages  can  be  justly  and  equitably  fixed  by  a  bar- 
gain between  employer  and  employed,  no  arbitrary 
authority  can  so  well  regulate  it  for  them.  It  has 
frequently  been  said  that  the  capitalist  is  better 
able  to  enforce  harsh  terms  upon  the  labourer  than 
the  labourer  is  to  resist  them.  This  is  an  assump- 
tion not  warranted  by  the  facts.  When  the 
competition  between  capitalists  for  profitable  in- 
vestments is  taken  into  account,  it  will  be  perceived 
that  a  manufacturer  who,  by  reason  of  paying  a 
lower  rate  of  wages  than  the  market  justifies,  earns 


44  LIFE  OF  SIMON  STERNE      CHAP. 

thereby  an  exorbitant  profit,  must  attract  capital 
into  the  same  line  which  will  create  an  additional 
demand  for  labour,  thus  giving  the  workmen  a 
greater  choice  of  employers  as  well  as  increased 
wages.  The  working-classes  have  thus  the  clearest 
possible  interest  in  the  increase  of  capital,  since  the 
greater  the  amount  of  capital  employed  in  any 
particular  industry,  and  the  more  extended  the 
credit,  the  higher  will  be  the  rate  of  wages.  In  a 
district  where  there  is  but  a  single  factory,  the 
labourer  is  to  some  extent  at  the  mercy  of  the 
employer.  But  erect  in  the  same  place  ten,  instead 
of  one,  industrial  establishments,  and  the  workman 
becomes  independent ;  he  can  choose  his  employer, 
and  competition  between  masters  will  increase  to 
its  highest  natural  price  the  wages  of  labour.  Mr. 
Sterne  therefore  asked  his  auditors  :  "  Who  can 
have  a  greater  interest  than  yourselves,  to  watch 
carefully  and  jealously  the  action  of  your  legislators, 
that  they,  by  short-sighted  legislation,  do  not 
hinder  the  growth  of  capital,  or  wantonly  inter- 
fere artificially  to  regulate  the  mutually  beneficial 
dependencies  and  relations  of  capital  and  labour  ?  " 
Mr.  Sterne  enumerated  the  stages  of  develop- 
ment through  which  the  labourers  of  the  world 
have  passed,  and  from  which  they  have  been 
gradually  emancipated  by  increased  intelligence 
and  machinery  as  :  (i)  slavery ;  (2)  serfdom  ;  (3)  as 
workers  for  hire.  That  this  third  stage  of  develop- 
ment would  develop  into  something  higher  and 
better  he  had  no  doubt ;  but  whether  the  working- 
men  of  the  world  were  already  ripe  for  this  higher 
and  better  development,  was  a  question  which  he 


ii  THE  LABOUR  PROBLEM  45 

did  not  undertake  to  solve.  The  prevalence  of 
strikes,  the  constantly  recurring  arguments  on  their 
own  part  against  capital  and  machinery,  seemed  to 
argue  against  their  present  fitness  for  something 
higher.  But  the  success  which  had  attended  the 
establishment  of  labour  associations  and  co-opera- 
tive societies,  organised  upon  strictly  scientific 
principles  in  Germany,  by  Herman  Schulze- 
Delitzsch,  had  been  so  marked  and  beneficial,  that 
he  regarded  it  as  folly  to  suppose  that  a  like 
attempt  would  not  meet  with  the  same  degree  of 
success  here.  Four  of  these  five  lectures  was 
intended  to  lead  up  to  an  explanation  of  how  such 
associations  could  be  organised,  and  were  designed 
to  disabuse  the  minds  of  working-men  of  erroneous 
conceptions  which  they  had  formed  in  regard  to 
the  relations  of  capital  and  labour,  and  on  the  sub- 
ject of  strikes,  population,  and  what  not.  Two  or 
three  years  before  the  delivery  of  these  lectures, 
Mr.  Sterne  had  personal  experience  of  the  crude 
and  erroneous  ideas  which  the  working-men  of  New 
York  were  liable  to  entertain  in  regard  to  their 
own  interests.  In  the  year  1862  there  was  a  strike 
of  some  2000  grain  shovellers,  measurers,  etc., 
against  the  use  on  the  part  of  their  employers  of 
the  steam  grain  elevators  which  were  gradually 
coming  into  vogue  in  this  part  of  the  country. 
Having  seen  the  grain  elevators  operated  on  a 
large  scale  in  the  West,  Mr.  Sterne  was  moved  to 
attend  a  meeting  of  the  striking  grain  shovellers  of 
New  York  to  give  them  some  words  of  practical 
counsel.  Permission  to  speak  was  readily  given  to 
him,  and  he  pointed  out  that  in  striking  for  an 


46  LIFE  OF  SIMON  STERNE      CHAP. 

increase  of  their  already  high  wages,  they  were 
drawing  attention  to  the  large  amount  of  money 
paid  to  men  for  hand  labour  which  could  be  done 
so  much  cheaper  by  machinery.  He  counselled 
them  that  instead  of  striking  they  should  at  once 
go  to  work  and  agree  to  put  half  their  wages  aside 
into  a  common  fund,  so  that  they  would  shortly 
have  money  enough  to  purchase  two  elevators  and 
become  the  owners  of  them  and  have  an  income 
from  that  source  for  all  time.  Meanwhile,  they 
could  continue  hand  labour  until  grain  shovellers 
were  no  longer  wanted,  and  keep  making  enough 
money  to  order  more  elevators,  so  as  to  be  first  in 
the  field  and  control  the  grain-handling  business  of 
the  port.  These  suggestions  were  rejected  by  the 
men  assembled,  and  they  declined  to  listen  to  further 
arguments  from  Mr.  Sterne  on  that  evening. 

In  one  of  the  lectures  delivered  in  1865,  Mr. 
Sterne  reverts  to  this  strike  to  illustrate  the  folly 
of  all  strikes  against  the  use  of  machinery.  He 
recalled  the  fact  that  in  1862  there  were  about 
2000  men  employed  in  the  trans-shipment  of 
grain,  together  with  six  grain  elevators.  The 
steam  grain  elevator  worked  by  nine  men  per- 
formed the  labour  in  two  days  that  would  require 
five  days  under  the  manual  system  with  twelve 
men  and  one  horse.  The  lessened  price  of  trans- 
shipment by  the  use  of  steam  was  twelve  cents  per 
hundred  bushels.  The  2000  men  then  employed 
in  the  business  earned,  at  the  time  of  the  strike,  an 
average  of  $3.50  per  day.  The  immediate  induce- 
ment to  strike  was  the  fear  of  losing  this  high 
remuneration  by  the  gradual  and  general  intro- 


ii  THE  LABOUR  PROBLEM  47 

duction  of  the  steam  elevators.  If  they  had  not 
struck,  the  introduction  of  the  elevator  into  general 
use,  like  that  of  every  improvement,  would  have 
been  gradual,  and  sufficiently  slow  to  have  permitted 
all  of  them  to  find  some  other  employment.  But 
as  soon  as  they  had  struck,  they  immensely  quick- 
ened the  march  of  events  which  they  had  intended 
to  obstruct.  Within  a  short  time  twenty  elevators 
were  placed  upon  the  stocks,  and  the  President  of 
the  Company  said  that  he  would  have  paid  the 
workmen  to  do  precisely  what  they  did.  These 
2000  men  were  out  of  employment  by  their  own 
voluntary  action  for  the  period  of  five  weeks,  and 
lost  during  that  time  in  wages  the  sum  of  $240,000. 
Had  they  placed  that  sum  in  a  common  fund,  they 
could  have  purchased  all  the  elevators  then  in  use 
in  the  city  of  New  York  for  the  sum  of  $20,000 
each,  making  an  aggregate  of  $120,000.  They 
could  then  have  worked  them  for  their  collective 
benefit,  and  had  $120,000  to  spare  for  other 
purposes.  But  in  consequence  of  the  strike  the 
grain  elevators  came  into  general  use,  so  that  the 
number  of  hands  employed  in  the  business  was 
decreased  by  one-half.  Assuming  that  the  grain 
shippers  had  assented  to  the  demands  of  the 
strikers,  the  grain  elevators  would  have  gone  to 
some  other  port  where  vessels  would  have  been 
loaded  more  quickly  and  cheaply,  and  New  York 
would  have  lost  an  important  element  of  its 
commerce. 

That  all  strikes  against  the  use  of  machinery 
should  be  predestined  failures  Mr.  Sterne  declared 
especially  fortunate,  since  otherwise  a  particular 


48  LIFE  OF  SIMON  STERNE      CHAP. 

class  could  for  ever  debar  mankind  from  the  use 
of  an  improvement,  beneficial  to  the  vast  majority 
of  their  interests.  When  a  number  of  men  frater- 
nise for  the  purpose  of  using  violence  of  any 
character,  they  soon  cut  loose  from  the  principles 
which  until  then  had  governed  their  conduct,  and 
their  violence,  when  once  begun,  takes  a  wide 
range,  and  brings  with  it  an  unexpected  train  of  evil 
consequences.  Granting  that  strikes  occasionally 
take  place  without  being  accompanied  by  violence, 
the  step  is  none  the  less  an  error  on  the  part  of  the 
workman.  He  acts  upon  the  supposition  that 
wages  can  be  arbitrarily  regulated  by  the  wishes  of 
employers  and  employed,  instead  of  depending 
upon  the  law  of  supply  and  demand  and  the  cost 
of  production.  When  wages  sink  in  any  particular 
employment,  it  is  by  reason  of  a  surplus  of  hands 
in  proportion  to  the  capital  invested  or  the  demand 
for  the  product.  If  not  arbitrarily  interfered  with, 
the  equilibrium  will  soon  be  established  by  the 
natural  course  of  events.  Some  workmen  will 
withdraw  from  employment  offering  low  to  one 
offering  higher  wages,  until  gradually  the  general 
average  is  attained.  But  from  the  moment  the 
labourer  strikes  he  adds  twofold  to  his  difficulty. 
In  the  first  place,  he  reduces  the  capital  employed 
in  his  industry,  thus  lessening  the  fund  upon  which 
he  must  depend.  Secondly,  he  increases  the 
number  of  persons  who  in  future  will  compete 
with  him  for  labour,  as  the  employer  will  engage 
new  hands  during  the  strike,  and  thereafter  prefer 
to  employ  those  newly  acquired  hands  as  a  punish- 
ment to  the  strikers.  Thus  labourers,  by  reason 


ii  THE  LABOUR  PROBLEM  49 

of  a  strike,  have  frequently  for  a  long  time  thrown 
themselves  out  of  employment. 

That  wages  should  sink  when  the  trade  or 
vocation  is  overcrowded  with  hands  is  a  harmonic 
natural  law,  beneficial  in  its  operation.  By  appeal- 
ing to  the  immediate  interests  of  the  labourer  it 
advises  him  to  change  his  vocation  or  economise  in 
his  expenditures.  But  if,  heedless  of  this  advice, 
he  attempts  by  violent  means  to  increase  his  wages, 
penury  and  misery  must  necessarily  result  from 
his  shortsighted  proceeding.  Should  the  employer 
accede  to  the  demands  of  the  employed,  the  injury 
may  be  greater  than  in  case  of  a  refusal,  if  the 
state  of  the  market  or  the  limited  supply  of  labour 
does  not  justify  the  increase.  In  a  short  time  the 
capital  of  the  employer  is  exhausted,  as  others  in 
the  same  trade  can  undersell  him.  And  the  increase 
of  wages  will  attract  new  hands  to  an  already  over- 
stocked labour  supply,  thus  increasing  the  com- 
petition between  labourers,  causing  ruin  to  those 
hitherto  employed,  as  well  as  to  the  others  who 
are  attracted  to  the  trade  by  the  temporary  increase 
of  wages. 

At  the  time  these  lectures  were  delivered,  the 
organisation  of  labour  had  by  no  means  reached 
the  point  of  development  which  it  has  since  attained, 
and  the  tyranny  of  the  trades-union  was  not  felt  to 
any  such  degree  as  it  is  at  the  present  time.  But 
Mr.  Sterne  clearly  perceived  the  dangers  inherent 
in  the  system,  and  proclaimed  them  with  an  amount 
of  frankness  and  courage  which  cannot  be  too 
highly  commended,  and  which  has  very  seldom 
been  imitated  by  public  teachers  having  the  ear  of 


50  LIFE  OF  SIMON  STERNE      CHAP. 

working-men.  He  defined  trades-unions  as  being 
associations  to  protect  working-men  in  any  cer- 
tain employment  from  the  supposed  despotism 
of  capitalists.  These  associations  are  formed  by 
working-men,  and  a  code  of  regulations  is  drawn 
up,  to  which  not  only  working-men  are  expected 
to  conform,  but  this  code  is  also  intended  as  a 
guide  to  the  proper  management  of  the  affairs  of 
the  capitalist  himself.  All  working-men  in  any 
particular  vocation  in  which  such  a  union  is  organ- 
ised, and  who  have  sufficient  independence  of  spirit 
and  manliness  to  refuse  to  be  guided  by  any  such 
self-constituted  judges  as  to  the  proper  wages  they 
should  receive,  or  the  hours  of  their  labour,  are 
subject  to  being  coerced  into  joining  the  organisa- 
tion by  having  every  impediment  thrown  in  their 
way  to  the  obtaining  of  employment,  and  by  having 
their  intercourse  with  their  fellow-workmen  made 
uncomfortable  by  manifestations  of  contempt  and 
dislike. 

Trades-unions  are  the  offspring  of  the  system  of 
guilds  which  governed  the  industrial  world  a  few 
centuries  ago.  These  guilds  were  associations  of 
working-men  and  employers  for  the  protection 
of  their  particular  trade  against  the  oppression  of 
government  on  the  one  hand,  and  the  encroach- 
ments of  similar  occupations  on  the  other.  That 
these  guilds  were  necessary  and  useful  at  one  period 
of  their  existence  no  one  who  believes  in  the  pro- 
gress of  civilisation  can  doubt.  The  guilds  were 
the  bulwarks  which  defended  in  its  infancy  the 
growth  of  the  industrial  enterprise  of  the  world, 
just  as  the  Hanseatic  League  was  the  first  great 


ii  THE  LABOUR  PROBLEM  51 

commercial  organisation  which  tended  to  develop 
and  foster  the  commercial  intercourse  of  nations. 
The  wealth  acquired  by  these  guilds,  the  strength 
of  their  membership  and  their  cohesion,  made  them 
respected  by  the  rulers  and  robber  barons  who  then 
governed  the  civilised  world,  and  who  dared  not 
infringe  upon  the  rights  of  the  guilds  for  fear 
of  the  rebellious  spirit  which  might  thereby  be 
awakened. 

Mr.  Sterne  quoted  from  Dunoyer  the  account 
of  a  litigation,  which  lasted  150  years  in  the  city  of 
Paris,  to  illustrate  some  of  the  absurd  disputes 
which  grew  out  of  the  guild  system,  and  which 
foreshadowed  some  of  the  petty  restrictions  of  the 
trades-unions.  This  litigation  was  begun  by  the 
Guild  of  Shoemakers  against  the  Cobblers'  Guild, 
to  settle  the  question  of  how  much  mending  or 
patching  of  shoes  should  be  allowed,  and  where 
patching  ceases  and  new  shoes  are  in  point  of  fact 
made.  After  grave  deliberation,  the  Courts  of 
Law  came  to  the  conclusion  that  putting  new  soles 
and  heels  on  old  uppers  was  patching,  and  putting 
new  uppers  on  old  soles  and  heels  was  also 
patching  ;  but  putting  new  uppers  on  new  soles 
and  heels  was  not  patching,  but  the  making  of 
new  shoes,  and  therefore  an  interference  with  the 
rights  of  the  time-honoured  and  highly  respectable 
Guild  of  Shoemakers. 

It  was  maintained  by  Mr.  Sterne  that  there  was 
this  essential  difference  between  the  guilds  and 
trades -unions,  that  while  the  former  had  an 
excuse  for  their  existence,  the  latter,  in  their 
existing  form  at  least,  had  none.  His  chief  objec- 


52  LIFE  OF  SIMON  STERNE       CHAP. 

tions  to  the  trades-unions  were,  that  they  were 
based  on  two  radically  false  and  mischievous  ideas 
— that  capital  and  labour  are  antagonistic,  and  that 
the  rate  of  wages  can  be  arbitrarily  fixed  by  the 
will  of  some  few  working-men,  instead  of  being 
regulated  by  the  law  of  supply  and  demand.  He 
admitted,  however,  that  no  system,  even  if  its 
object  be  objectionable,  which  tends  to  bring 
working-men  together,  which  leads  to  an  exchange 
of  views,  which  tends  to  make  labourers  acquainted 
with  their  common  wants  and  necessities,  can  fail 
to  be  of  ultimate  benefit.  Therefore,  while  their 
immediate  object  may  be  a  mistaken  one,  they  are 
calculated  to  become  the  germ  of  future  good  in 
facilitating  gradual  enlightenment  upon  the  ques- 
tion, the  practical  solution  of  which  should  form 
the  true  object  of  the  association.  Schulze-Delitzsch 
found  these  trades  -  unions  scattered  in  great 
abundance  throughout  Germany,  and  he  converted 
them  all  into  co-operative  societies.  The  existence 
of  the  unions  facilitated  his  labours,  because  it  was 
not  necessary  to  bring  together  the  working-men 
engaged  in  any  particular  employment  ;  they  were 
already  assembled.  All  that  he  had  to  do  was  to 
dissipate  error  and  establish  truth  in  the  minds  of 
the  members  of  the  German  guilds,  and  his  cause 
was  won.  It  was  admitted  that  improvements, 
such  as  those  introduced  by  Schulze-Delitzsch 
were  easier  to  accomplish  in  Germany  than  they 
could  be  here.  The  people  of  Germany,  not 
being  possessed  of  political  power,  had  not  been  led 
and  misled  by  demagogues ;  had  not  been  made 
vain  by  flattery ;  did  not  suppose  themselves 


ii  THE  LABOUR  PROBLEM  53 

intelligent  and  wise,  but  were  willing  to  learn  from 
a  man  who  had  made  the  subjects  of  political 
economy  and  labour  a  life-long  study,  and  they 
hailed  him  as  their  benefactor  and  guide.  With 
a  blunt  straightforwardness  which  excites  our  ad- 
miration, Mr.  Sterne  told  his  auditors  that  while 
the  flatterers  and  sycophants  of  Germany  plied  their 
miserable  arts  at  the  courts  of  that  nation,  they  did 
not  corrupt  the  heads  of  the  lower  classes,  whereas 
here,  the  demagogue  and  pothouse  politician  can 
ride  to  power  only  on  the  shoulders  of  labouring 
men.  He  therefore  cringes  to  those  who  require 
instruction  and  not  flattery,  and  to  whom  a  few 
earnest  words  of  advice  and  remonstrance  is  much 
more  wholesome  than  pandering  to  their  lowest 
passions  and  playing  on  their  basest  feelings. 

Mr.  Sterne  was  an  enthusiastic  advocate  of  the 
application  of  the  co-operative  principle  to  pro- 
duction as  well  as  to  distribution,  and  believed  that 
in  this  was  to  be  found  the  true  solution  of  the 
labour  question.  The  concluding  lecture  of  the 
series,  the  first  four  lectures  of  which  have  been 
already  summarised,  was  devoted  to  a  review  of 
the  practical  operation  of  the  co-operative  societies 
of  England  and  Germany.  Answering  the  objec- 
tions which  have  been  urged  against  co-operative 
plans  of  production,  Mr.  Sterne  admitted  that 
there  was  some  justice  in  the  argument  that  men 
who  co-operate  are  not  as  likely  to  find  some 
disinterested  individual  who,  like  the  capitalist, 
will  always  buy  in  the  cheapest  market  and  sell  in 
the  dearest.  He  admitted  that  a  capitalist  directly 
interested  in  the  results  of  his  labours,  whose  whole 


54  LIFE  OF  SIMON  STERNE       CHAP. 

profit  was  dependent  upon  his  activity  or  enter- 
prise, was  enabled,  by  reason  of  the  additional  spur 
to  action  which  the  hope  of  gain  calls  forth,  to 
underbuy  and  oversell,  all  other  things  being  equal, 
any  co-operative  store  or  manufactory.  But  he 
maintained  that  all  other  things  were  not  equal. 
The  capitalist  is  subject  to  counteracting  influences 
from  which  co-operative  working-men  are  free. 
In  the  first  place,  he  is  in  constant  practical 
antagonism  toward  his  working-men,  who  will 
give  him  as  little  labour  as  they  can  for  as  much 
wages  as  they  are  able  to  secure  ;  who,  un- 
instructed  in  the  relations  between  capital  and 
labour,  will  constantly  try  to  hinder  and  prevent 
as  much  as  possible  the  profits  of  the  capitalist. 
What  with  strikes  and  trades-union  regulations, 
arbitrary  laws  in  reference  to  the  hours  of  labour, 
and  laziness  on  the  part  of  working-men,  the 
capitalist  is  constantly  impeded  and  hindered  in 
the  maintenance  of  regularity  in  the  supply  of  the 
commodity  which  he  furnishes.  Co-operation 
changes  all  this.  The  working-man  is  both 
capitalist  and  labourer,  and  he  at  once  perceives, 
that  if  he  is  faithless  in  his  duty  as  labourer,  he 
injures  his  interests  as  capitalist.  He  begins  to 
understand  practically  the  relations  of  capital  and 
labour,  and  with  the  great  mass  of  mankind 
practical  demonstration  is  the  only  teacher.  The 
great  curse  of  the  wage-earning  class  is  the  bitter- 
ness engendered  by  the  idea  that  labour  and  capital 
cannot  work  harmoniously  together.  Co-operation 
removes  all  this.  The  little  sum  originally  saved 
will  be  carefully  watched,  and  every  effort  will  be 


ii  THE  LABOUR  PROBLEM  55 

made  to  increase  it.  Strikes  cannot  occur,  and 
there  will  be  an  immediate  perception  of  the  fact 
that  wages  depend  upon  profit,  and  not  upon  the 
arbitrary  will  of  employer  and  employed.  Under 
the  co-operative  system  the  workman  would  be  in 
every  way  improved,  intellectually  and  morally. 
All  the  inchoate  socialism  and  communism  in  his 
nature  would  be  driven  out  of  him  by  experience. 

It  was  Mr.  Sterne's  conviction  that  almost  all~7 
working-men,  not  possessed  of  capital,  are  socialists 
and  communists  without  ever  having  read  a  line  of  . 
Proudhon  or  Fourier.  He  discerned  the  prob-^J 
ability  of  another  change  in  the  fact  that  after  a 
year's  experience  of  co-operation,  working-men 
could  no  longer  be  led  to  the  polls  like  sheep  to 
the  shambles,  well  knowing  that  the  votes  they 
cast  tend  to  put  some  thief  in  office,  but  consoling 
themselves  with  the  delusion  that  the  capitalist  pays 
for  it  and  they  do  not.  Once  a  capitalist  himself, 
to  however  limited  an  extent,  the  artisan  voter 
would  say  to  the  demagogue  who  tries  to  cajole 
him  out  of  his  vote  :  "  No,  you  don't ;  I  tried  this 
sort  of  business  last  year,  and  my  taxes  have  largely 
increased  in  consequence.  I  have  learned  some- 
thing by  this  time."  It  is  true  that,  property  or 
no  property,  capital  or  no  capital,  the  working-man 
pays  the  taxes,  but  he  does  not  know — he  does 
not  feel  it.  It  is  done  indirectly  ;  he  never  sees 
the  tax-gatherer  in  propria  persona.  By  the  co- 
operative system,  he  learns  to  feel  the  consequences 
of  his  wrong,  and  he  will  try  to  avoid  its  perpetua- 
tion. 

Another  objection  to  co-operation  is  that  it  is  a 


56  LIFE  OF  SIMON  STERNE      CHAP. 

species  of  communism,  and  as  such  it  should  be 
condemned.  Mr.  Sterne  met  this  objection  by  a 
simple  denial.  It  is  not  communistic  at  all,  but 
quite  the  contrary.  It  is  a  specific  cure  against 
communism.  Communism  is  essentially  a  system 
by  means  of  which  everybody  is  to  receive  an 
equal  share  in  this  world's  goods.  No  matter 
what  his  intelligence  or  stupidity,  no  matter  what 
his  industry  or  laziness,  he  is  to  enjoy  the  same 
amount  of  comfort  and  luxury  as  everybody  else. 
Co-operation  rightly  understood  and  rightly 
practised,  embodies  nothing  of  all  this.  It  is 
simply  a  development  of  a  system  of  wages  ;  it 
embodies  all  that  is  good  and  excludes  all  that  is 
bad  in  that  system.  In  co-operation,  the  working- 
man  receives  interest  on  the  amount  of  capital  he 
has  himself  invested,  profit  in  proportion  to  his 
risk  and  wages  in  proportion  to  production,  so 
that  the  system  is  the  farthest  possible  remove 
from  communism. 

The  unanswerable  argument  in  favour  of  co- 
operation is  that  it  educates  working-men  to  a 
higher  scale  of  being  than  that  which  they  have 
so  far  enjoyed.  Working-men  become  masters. 
They  are  compelled  to  watch  the  changing  events 
of  the  market.  They  begin  to  understand  the 
interlacing  and  solidarity  of  human  interests. 
They  begin  to  comprehend  the  influence  of  peace 
and  war  upon  prices,  and  of  plenty  or  dearth  upon 
profits.  They  are  naturally  led  to  discuss  and 
adjust  between  each  other  their  various  profits  and 
losses.  Competition  will  make  them  desirous  to 
educate  themselves  so  as  to  be  on  a  par  with  other 


ii  THE  LABOUR  PROBLEM  57 

employers.  Reading-rooms  and  mechanics'  in- 
stitutes will  spring  up  everywhere  as  one  of  the 
beneficent  results  of  such  a  system.  Instead  of,  as 
now,  opposing  the  introduction  of  the  improve- 
ments in  machinery,  they  will  seek  at  the  earliest 
possible  moment  to  avail  themselves  of  these  im- 
provements. 

The  introduction  of  machinery,  while  beneficial 
to  all  the  interests  of  society,  had  one  deleterious 
effect,  which  was,  that  it  tended  to  keep  working- 
men  fixed  in  their  positions.  That  is  to  say,  the 
introduction  of  machinery  has  so  increased  the 
amount  of  capital  requisite  to  the  building  and 
equipping  of  a  successful  manufacturing  establish- 
ment, that  it  became  almost  a  hopeless  task  for 
the  working-man  to  emancipate  himself  from  his 
position  as  a  journeyman  and  to  swing  himself  to 
that  of  an  employer.  Mr.  Sterne  cited,  for  illus- 
tration, a  mechanic  employed  in  one  of  the  great 
iron -mills  reflecting  on  his  position  and  being 
driven  to  the  conclusion  that  100  years  of  most 
rigidly  enforced  economy  would  not  suffice  to 
enable  him  to  possess  himself  of  the  huge  machines 
necessary  to  compete  successfully  with  existing 
manufacturers.  He  looks  at  one  of  these  great 
machines,  and  when  he  calculates  that  such  an 
instrument  of  labour  alone  costs  $25,000  his  heart 
sinks  within  him,  and  he  feels  himself  as  much 
debarred  from  the  position  of  master  workman  as 
though  a  law  defined  his  position  and  enacted  that 
he  should  for  ever  remain  in  it.  This  absorption 
of  the  vast  amount  of  capital  by  machinery  and 
the  influence  it  has  had  on  the  working-man,  aside 


58  LIFE  OF  SIMON  STERNE      CHAP. 

from  the  fact  that  it  has  advanced  his  wages  and 
lessened  the  drudgery  of  his  employment,  was  to 
Mr.  Sterne  a  sad  thing  to  contemplate.  That  the 
vast  majority  of  mankind  should  be  doomed  to 
a  perpetual  routine  of  work  without  the  hope  of 
social  advancement,  would  argue  that  if  a  remedy 
cannot  be  found  against  so  crying  a  social  evil, 
there  is  something  wrong  in  our  social  organisa- 
tion. 

Almost  everywhere  throughout  the  world,  Mr. 
Sterne  found  indications  that  working-men  were 
entering  upon  a  new  phase  of  social  existence, 
differing  as  much  from  the  one  in  which  they  are 
at  present  as  working  for  wages  differs  from  serf- 
dom. He  saw  that  it  might  take  many  years 
before  this  revolution  would  be  completely  effected. 
For  hundreds  of  years  serfdom  existed  by  the  side 
of  freedom,  and  thus,  for  a  century  or  more,  the 
greater  part  of  labouring  men  may  be  compelled  to 
depend  upon  salary  or  wages  for  their  sole  means 
of  existence.  But  the  question  of  co-operation  is 
no  longer  an  experiment,  and  it  depends  upon  the 
working-men  alone  as  to  how  soon  they  will  avail 
themselves  of  the  advantages  of  the  system.  Mr. 
Sterne  perceived  but  one  thing  in  the  way  of  the 
successful  introduction  of  the  Schulze-Delitzsch 
banks  in  the  United  States,  and  that  is  the  usury 
law.  Fifty  years  before  he  spoke,  Jeremy  Ben- 
tham,  in  his  unanswerable  plea  for  usury,  had 
given  usury  laws  their  mortal  wound,  but  as  if 
unconscious  of  the  propriety  of  dying,  these  laws 
most  unscientifically  and  unpardonably  continue 
their  existence.  Since  they  impeded  and  delayed 


ii  THE  LABOUR  PROBLEM  59 

the  introduction  of  a  great  social  reform,  it  was 
high  time,  in  Mr.  Sterne's  judgment,  that  an 
agitation  be  commenced  for  the  repeal  of  these 
remnants  of  narrow  views  and  middle  age  preju- 
dices. Error  is  really  long  lived,  particularly  in 
governmental  institutions ;  it  won't  be  argued 
down  nor  laughed  down,  but  positively  insists  on 
being  kicked  down  before  it  consents  to  abdicate. 

The  supreme  triumph  of  the  Schulze-Delitzsch 
Association,  Mr.  Sterne  found  to  be  that,  for  the 
first  time  in  the  history  of  labour,  the  question 
had  been  solved  of  the  credit  which  it  could  com- 
mand. The  remark  had  been  frequently  made 
that  labour  is  capital,  but  hitherto  it  had  been  a 
capital  upon  which  little  if  any  credit  was  given. 
But  it  had  been  demonstrated  that  it  was  capital 
in  the  sense  that  it  could  be  hypothecated  and 
pledged  for  advances  made  to  it.  The  point 
which  in  all  this  progress  was  most  gratifying  was 
that  the  improvements  in  the  social  condition  of 
working-men  had  been  effected  by  themselves. 
The  initiative  had  not  come  from  Governments 
and  did  not  depend  upon  Governments  for 
support.  There  was,  therefore,  substantial  reason 
for  believing  it  to  be  real,  not  factitious,  to  be 
enduring,  not  transient.  Nay,  more,  there  ap- 
peared to  be  good  reason  to  believe  that  the 
benefits  which  would  arise  from  these  simple  co- 
operative societies  might  vie  in  importance  with 
the  results  which  flowed  from  that  meeting  of  the 
seven  citizens  of  Manchester,  who  began  the  agita- 
tion of  the  question  of  free  trade. 

It  is  instructive  to  note  the  vitality  of  the  ideas 


60  LIFE  OF  SIMON  STERNE      CHAP. 

formulated  by  Mr.  Sterne  for  the  instruction  of  his 
artisan  hearers  of  a  generation  ago  in  the  latest 
discussions  of  the  labour  problem.  At  a  meeting 
of  the  American  Academy  of  Political  and  Social 
Science,  held  in  Philadelphia  on  July  1902,  we  find 
Mr.  W.  H.  Pfahler,  of  the  National  Association 
of  Iron  Founders,  making  the  following  generalisa- 
tions : — "Labour,  whether  skilled  or  unskilled, 
engaged  in  the  reduction  of  the  raw  material  to 
the  finished  product,  is  also  dependent  upon  the 
law  of  supply  and  demand  to  fix  its  value  or  wage  ; 
and  any  effort  to  change  this  value  brings  the  wage- 
earner  in  direct  conflict  with  the  consumer,  through 
his  representative,  the  employer,  whose  duty  it  is 
to  know,  and  who  usually  does  know,  what  pro- 
portion of  the  entire  cost  of  any  article  can  be  dis- 
tributed in  wage,  so  as  to  retain  the  value  of  the 
article  at  a  price  not  in  excess  of  the  ability  of  the 
consumer  to  purchase,  and  yet  within  limits  which 
will  prevent  a  more  favoured  nation  or  district 
from  furnishing  the  same  article  in  competition, 
and  thereby  causing  idleness  for  the  wage-earner 
and  loss  to  the  employer.  Capital  represents 
plant,  machinery,  transportation,  interest,  and  all 
the  factors  known  as  unproductive,  and  yet  ab- 
solutely essential  for  the  combination  of  material 
and  labour.  Capital  is  usually,  though  not  always, 
the  owner  of  material  and  the  direct  employer  of 
labour,  and  therefore  must  stand  for  the  silent 
partner  in  the  combination.  What  is  so  frequently 
called  a  war  between  capital  and  labour  is  simply 
an  effort  on  the  part  of  the  wage-earner  and  wage- 
payer  to  determine  what  part  of  the  product  of 


ii  THE  LABOUR  PROBLEM  61 

labour,  as  distinct  from  material,  is  represented  in 
the  price  to  the  public,  and  after  deducting  the 
proper  charge  for  plant,  etc.,  how  the  balance, 
which  is  profit,  shall  be  divided  between  the  em- 
ployer and  employee — or  wage-payer  and  wage- 
earner." 

From  these  and  similar  principles  Mr.  Pfahler 
makes  deductions  which  run  on  all  fours  with  those 
made  in  1865  by  Mr.  Sterne.  He  insists  that  the 
employee  must  not  forget  that  the  effort  to  estab- 
lish a  minimum  rate  of  wage,  if  based  upon  the 
lowest  standard  of  efficiency,  destroys  the  earn- 
ing power  of  the  more  competent  workman,  and 
lowers  the  standard  of  all.  That  the  effort  to 
limit  production  is  false  in  principle,  and  can  only 
succeed,  if  at  all,  when  the  demand  is  in  excess  of 
the  supply,  and  when  it  succeeds  it  causes  the 
creation  of  methods  and  machines  which  supplant 
the  skill  of  the  mechanic,  and  bring  into  competi- 
tion a  lower  grade  of  labour  at  a  lower  wage. 
That  the  laws,  rules,  and  methods  of  Labour 
Unions  must  be  changed  to  conform  to  present 
conditions  if  the  Union  hopes  to  be  recognised  as 
a  factor  in  the  adjustment  of  the  labour  problem. 
That  the  right  to  strike,  or  refuse  to  work,  under 
certain  conditions,  does  not  involve  the  right  to 
prevent  others  from  working,  if  the  conditions  are 
satisfactory  to  them,  and  involves  responsibility  for 
all  the  damage  that  may  arise.  That  the  standard 
of  wage  cannot  be  measured  by  the  standard  of 
time  employed,  or  energy  expended,  but  by  the 
results  attained. 

Still  more  striking  is  the  correspondence   be- 


62  LIFE  OF  SIMON  STERNE      CHAP. 

tween  Mr.  Sterne's  ideas  and  those  of  Mr.  Alex- 
ander Purves,  Treasurer  of  the  Hampton  Institute, 
Virginia,  which  were  submitted  at  the  same  meet- 
ing, in  regard  to  the  advantages  of  industrial 
co-operation.  Mr.  Purves  enunciates  the  follow- 
ing principles  as  sufficiently  well  established  to 
be  used  as  a  basis  for  working  out  plans  for  the 
reform  of  prevailing  relations  of  labour  and 
capital  : — "  (a)  That  whenever  there  is  sufficient 
confidence  on  the  part  of  the  employees,  a  direct  or 
an  indirect  dividend  to  labour  is  a  good  invest- 
ment for  capital.  (£)  That,  with  an  actual  dividend- 
earning  interest  in  the  business,  every  participant 
would  be  prompted  to  individual  efforts  :  (i) 
towards  accomplishing  more  work  in  a  given 
length  of  time;  (2)  in  the  saving  of  waste  ;  (3) 
in  seeking  and  suggesting  improvements  in  the 
manufacture  and  in  the  conduct  of  the  business, 
looking  to  the  advancement  of  the  general  welfare  ; 
(4)  in  that  it  would  naturally  become  the  self-im- 
posed duty  of  every  employee  to  challenge  a  co- 
worker  for  laziness,  or  upon  the  commission  or 
omission  of  any  act  through  which  a  loss  to  the 
business  would  be  the  likely  result ;  and  therefore 
(c]  that  capital  in  business  is  best  secured  when 
every  employee  is  pecuniarily  benefited  through 
the  enlarged  success  of  the  enterprise." 

Mr.  Purves  puts  the  question  :  "  Would  the 
plan  of  letting  the  employees  generally  become 
part  owners  of  the  concern  place  them  in  a  position 
to  give  trouble  to  the  management  of  the  enter- 
prise, and  would  they  not  soon  demand,  as  stock- 
holders, the  right  to  a  voice  in  the  direction  of  its 


ii  THE  LABOUR  PROBLEM  63 

affairs  and  in  the  shaping  of  its  policy  ?  "  To  this 
he  presents  the  following  reply  : — "  (a)  That  with 
the  proper  and  timely  guarding  of  the  interests  of 
the  original  investment  through  sufficient,  clear, 
and  undeniable  limitations  upon  the  rights  and 
powers  carried  with  the  issues  of  deferred  stock, 
such  issues  could  not  be  used  to  the  detriment  of 
vested  interests,  but  rather  (/£)  that  such  a  pecuni- 
ary interest  in  the  enlarged  success  of  the  business 
would  act  as  a  guarantee  of  loyalty  to  the  manage- 
ment, and  as  an  incentive  to  the  employees  to 
further  the  legitimate  business  of  the  concern,  and 
(r)  that  the  employees  with  a  money  investment  in 
the  enterprise,  if  for  no  higher  reason  than  the 
instinct  of  self-preservation,  would  realise  the  value 
and  necessity  for  harmonious  and  sympathetic  co- 
operation between  the  capital,  brains,  and  energy  of 
the  concern." 

To  the  further  question :  "  Would  capital  be 
benefited  by  the  operation  ? "  Mr.  Purves  replies 
without  reservation  that  it  would,  and  for  the 
following  reasons  : — "  (# )  That  the  net  profits  of 
the  business  would  be  largely  increased,  through  the 
reduction  of  friction  ;  the  larger  incentive  of  labour ; 
the  increase  in  the  physical  capacity  of  the  workers 
to  produce  ;  the  saving  of  useless  waste  ;  and 
through  the  absence  of  strikes  and  lock-outs  ;  as  in 
all  of  such  increase  in  net  profits  the  capital  would 
be  an  equal  sharer  with  its  employees.  (^)  That 
the  true  loyalty  and  support  of  all  employees  would 
greatly  strengthen  the  security  of  the  capital  in  the 
business,  and  proportionately  add  to  the  real  value 
of  the  investment,  (r)  That  where  adverse  legisla- 


64          LIFE  OF  SIMON  STERNE     CHAP,  n 

tion  may  be  easy  of  accomplishment,  when  it 
attacks  the  interest  of  one  man  or  a  small  body  of 
men,  it  would  be  quite  a  different  matter  where 
the  interests  of  all  employees  are  involved.  (^/) 
That  the  surplus  profits  would  not  be  paid  out  and 
distributed,  but  would  be  held  in  the  business, 
subordinated  to  the  claims  of  the  original  invest- 
ment, and  so  very  materially  adding  to  the  security 
thereof,  (tf)  That  with  a  property  interest  in  the 
business,  the  tendency  of  the  operatives  to  shift 
from  one  concern  to  another  without  real  purpose 
would  be  reduced  to  the  minimum,  and  that  the 
consequent  advantage  to  the  management  would 
result  in  a  distinct  gain  in  the  stability  of  the 
business." 

All  of  which  goes  to  show  that  while  the 
labours  of  the  pioneer  may  be  forgotten,  the  result 
of  his  work  lives  after  him,  and  becomes  part  of 
the  influence  by  which  social  reforms  can  be 
brought  into  practical  correspondence  with  the 
special  wants  and  conditions  of  each  succeeding 
generation. 


CHAPTER   III 

PARTICIPATION    IN    PARTY    POLITICS 

To  Mr.  Sterne  politics  stood  for  the  whole  science 
of  government,  whose  study  must  be  undertaken 
with  an  open  mind,  and  not  at  all  in  the  spirit  of 
partisanship.  Believing,  as  he  did,  in  the  economic 
soundness  of  the  principles  of  Free  Trade,  he  was 
naturally  attracted  toward  the  party  by  which  these 
principles  had  been  espoused  rather  than  to  the 
party  which  had  made  the  Protective  theory  its 
own.  The  conviction,  which  he  early  imbibed, 
that  the  country  is  governed  best  which  is  governed 
least,  also  predisposed  him  in  favour  of  the  party 
organisation  whose  traditions  were  identified  with 
restraining  the  functions  of  the  national  govern- 
ment within  the  strict  lines  of  the  constitutional 
delegation  of  power.  But  with  what  came  to  be 
known  as  the  Southern  theory  of  State  rights  Mr. 
Sterne  had  no  sympathy  whatever,  and  on  the 
question  of  slavery  he  was  as  radical  as  the  blackest 
of  Republicans.  The  following  letter  addressed 
by  him  in  1864  to  Mr.  Charles  Dolfuss,  editor  of 
the  Revue  Germanique  of  Paris,  outlines  very  clearly 
the  nature  of  his  convictions  in  regard  to  the 
issues  of  the  war  : — 

65  F 


66  LIFE  OF  SIMON  STERNE      CHAP. 

In  the  Republic  of  letters  introductions  are  unneces- 
sary, and  I  can,  without  fear  of  rebuke,  hail  at  the  distance 
of  4000  miles  a  kindred  spirit.  All  honour  to  the 
man  who  has  advocated  the  cause  of  the  North,  and 
whose  abiding  faith  in  free  institutions  and  free  labour 
led  him  to  the  inevitable  conclusion  that  in  a  struggle 
between  the  contending  elements  of  freedom  and  slavery 
slavery  is  doomed. 

It  is  with  no  little  interest  that  we  watched  the  course 
of  the  Revue  Germanlque^  and  we  did  so  because  we  knew 
the  weight  of  the  opinions  of  Charles  Dolfuss.  A  mis- 
conception in  reference  to  the  genius  of  our  institutions 
has  misled  many  European  thinkers,  and  if  by  this  letter 
I  can  succeed  in  partially  dispelling  that  misconcep- 
tion, I  shall  not  have  written  it  in  vain.  Those  who 
suppose  that  we  are  struggling  for  empire  will  discover 
their  mistake,  and  find  that  we  are  really  struggling  for  a 
lasting  peace,  and  the  restoration  of  that  harmony  which 
existed  before  the  breaking  out  of  this  rebellion.  Before 
the  enactment  of  the  constitution  of  1789,  the  confedera- 
tion of  States,  as  it  existed  immediately  after  the  recogni- 
tion of  our  independence,  was  found  to  be  ineffectual 
against  the  internecine  feuds  and  strife  which  the  men  of 
that  time  perceived  to  be  looming  up  in  the  distance. 
They  therefore  determined  to  form  a  more  permanent 
union,  founded  upon  the  right  of  self-government  on  the 
part  of  each  State,  but  granting  to  the  central  power  the 
right,  peaceably  and  amicably,  to  adjust  conflicts  which 
would  in  the  course  of  time  arise  between  the  various 
members  of  the  confederacy.  And  thus,  to  all  intents 
and  purposes,  the  thirty-four  States  now  composing  the 
United  States  of  America  are  separate  and  independent  of 
each  other,  with  the  full  power  to  regulate  their  internal 
affairs  as  may  best  suit  them,  with  the  single  reservation 
that  they  are  bound  to  preserve  the  Republican  form  of 
government,  and  to  submit  their  disputes  to  the  peaceable 
adjudication  of  the  Supreme  Court  instead  of  the  arbitra- 
ment of  force  by  means  of  war  or  restrictive  legislation. 


in  PARTY  POLITICS  67 

The  General  Congress  elected  by  the  various  Legislatures, 
the  Executive  elected  by  the  people,  are  merely  means  to 
attain  that  end.  The  result,  as  experience  has  proven, 
has  been  most  beneficial,  and  we  have  seen  the  unexampled 
spectacle  of  numerous  separate  and  independent  common- 
wealths residing  together  without  the  necessity  of  a 
standing  army,  without  the  thought  of  restricting  the 
interchange  of  commodities  as  between  each  other.  But 
the  slave  power,  ever  alert  for  its  own  safety,  discovered 
that  the  march  of  free  ideas  and  the  prosperity  of  the 
North  under  the  system  of  free  labour  would  make  the 
tenure  of  its  position  precarious,  and  that  leaving  the 
arbitrament  of  questions  between  the  States  to  the  peace- 
ful settlement  of  a  central  regulating  power,  its  system 
must  vanish.  The  advancing  stride  of  civilisation,  armed 
with  the  power  of  machinery,  which  daily  makes  brains 
worth  more,  and  muscle  worth  less,  would,  by  the  operation 
of  natural  law,  supersede  human  bondage. 

They,  therefore,  rebelled  against  that  system  which 
by  leaving  man  free  to  his  individual  development  per- 
mitted him  to  outgrow  the  trammels  of  power  and 
restriction.  They  desired  to  withdraw  the  4,000,000 
of  bondsmen  from  the  eloquent  hum  of  machinery  and 
the  instructive  lessons  of  progress.  The  Southern  States 
knew  that  force  being  the  foundation  of  slavery,  force 
alone  can  sustain  it  ;  that  where  the  system  of  slavery 
ceases  to  rule  it  ceases  to  live.  Hence  the  Rebellion. 
Our  struggle  has,  therefore,  a  higher  meaning  than  the 
desire  of  empire ;  it  means  that  we  cannot  permit  our 
country  to  be  divided  and  subdivided,  so  that  we  fall  into 
the  same  errors,  into  the  same  mistakes,  from  which 
Europe  is  suffering — standing  armies,  conflicting  tariffs, 
and  supposed  antagonism  of  interests.  It  is  that  which 
we  must  avoid  ;  it  is  that  which  we  must  at  any  sacrifice 
attempt  to  counteract. 

But  in  times  of  peace  rather  than  of  war  will  our 
country  be  tried.  The  dangerous  feeling  is  fast  gaining 
ground  that  we  must  more  and  more  centralise  power, 


68  LIFE  OF  SIMON  STERNE      CHAP. 

and  that  the  individual  has  hitherto  been  too  free.  It  is, 
therefore,  with  sincere  delight  that  I  read  your  article  on 
Decentralisation,  and  I  am  convinced  that  it  contains 
lessons  of  wisdom  which  it  would  be  well  for  our  country- 
men to  memorise.  We  are  passing  a  tax  bill,  most 
unphilosophical  in  its  provisions,  and  dangerous  in  its 
tendencies.  We  have  sacrificed  our  writ  of  Habeas 
Corpus,  and  have  ordained  a  censorship  of  the  press. 
The  necessity  of  the  moment  has  perhaps  been  a  sufficient 
excuse  for  our  conduct  in  that  respect,  but  it  is  necessary 
to  awaken  our  people  to  the  fact  that  their  salvation  does 
not  lie  in  such  sacrifices,  but  in  the  rigid  maintenance  of 
their  rights  and  the  reclamation  of  those  natural  prero- 
gatives after  the  necessities  of  the  hour  shall  have  passed 
away.  Believing  that  general  progress  is  possible  only 
through  the  progress  of  the  individual,  in  order  to  reach 
the  ear  of  the  public  we  intend,  at  an  early  day,  to  organise 
a  society  for  the  promotion  of  a  knowledge  of  political 
economy,  an  enterprise  in  which  we  hope  to  have  the 
co-operation  of  European  economists. 

Trusting  that  you  may  continue  in  the  good  cause 
with  the  same  force  that  you  have  hitherto  displayed,  and 
assuring  you  that  you  find  many  admirers  on  this  side  of 
the  ocean,  I  remain,  with  the  highest  respect,  yours 
truly,  SIMON  STERNE. 

As  above  indicated,  the  measures  adopted  to 
silence  the  voice  of  the  Northern  press  when  it 
suggested  sympathy  with  the  cause  of  secession 
were  alien  to  all  his  ideas  of  the  sacredness  of 
constitutional  guarantees,  and  appear  to  have  elicited 
from  him  more  than  one  vigorous  protest.  The 
occasion  of  the  following  was  the  act  of  the  Admin- 
istration in  forcibly  restricting  the  circulation  of 
the  Journal  of  Commerce^  Daily  News,  and  Day- 
Book  of  New  Tork.  Like  the  communication  to 


in  PARTY  POLITICS  69 

Mr.  Dolfuss,  this  plea  for  the  liberty  of  the  press 
is  marked  by  a  style  and  sentiment  which  are 
interesting  as  the  product  of  what  may  be  called 
the  formative  period  of  Mr.  Sterne's  intellectual 
growth  : — 

Within  the  last  week  a  step  was  taken  by  our  Govern- 
ment, the  consequences  of  which  are  of  the  greatest 
importance  to  the  American  people.  A  censorship  was 
placed  over  the  press,  and  the  indirect  method  of  muzzling 
the  same  by  forcibly  restricting  its  circulation  was  adopted. 
We  are  denied  the  high  privilege  of  seeing  our  ideas 
mirrored  in  the  journals,  and  are  robbed  of  the  still  higher 
liberty  of  giving  free  expression  to  our  thoughts.  So 
intent  are  we  on  the  idea  of  preserving  the  Union  and 
the  Constitution — the  forms  in  which  our  liberties  were 
embodied  —  that  we  do  not  feel  in  attempting  to  pre- 
serve that  form  that  the  spirit  for  which  we  contend  is 
fast  slipping  from  our  grasp,  and  that,  on  the  tyrant's 
plea  of  necessity,  we  are  rapidly  being  deprived  of  our 
liberties,  and  fast  ceasing  to  be  the  representatives  of  those 
enlightened  principles,  the  beneficent  workings  of  which 
characterise  our  century,  and  are  the  surest  test  of  our 
progress.  The  Habeas  Corpus,  one  of  the  bulwarks  of 
our  liberties,  has  been  suspended — that  writ  the  suspension 
of  which  has  never  been  attempted  even  in  England. 
And  the  next  great  step  in  our  enslavement  is  fast  being 
accomplished — the  suppression  of  the  enunciation  of  public 
sentiment  by  means  of  the  public  press. 

And  upon  what  grounds  are  these  infringements 
attempted  to  be  excused,  upon  those  liberties  which  but 
yesterday  we  guarded  so  jealously  ;  which  but  yesterday 
we  regarded  as  the  just  pride  of  our  people,  the  just  pride 
of  our  country,  the  just  pride  of  our  system  of  govern- 
ment ?  Liberty,  in  the  broad  sense  to  which  we  have 
been  accustomed,  was  the  result  of  our  civilisation.  That 
holy  trinity — liberty  of  press,  conscience,  and  speech — 


70  LIFE  OF  SIMON  STERNE      CHAP. 

was  the  flower  which  the  tree  of  knowledge  bore  after 
the  toil  and  labour  of  centuries.  We  have  hitherto 
boasted  of  the  proud  pre-eminence  of  our  nation  in  having 
established,  almost  a  century  ago,  the  fundamental  law 
that  the  people  are  supreme.  It  was  the  success  which 
attended  the  carrying  out  of  that  dogma  that  entitled  us 
to  the  high  esteem  of  nations,  and  not  the  fact  of  our 
territory  extending  from  the  St.  Lawrence  to  the  Rio 
Grande.  And  we  are  to  be  deprived  of  this  distinction 
by  one  fell  blow,  without  even  the  semblance  of  an  excuse 
on  the  part  of  the  Administration.  It  is  idle  to  suppose 
that  our  liberties  can  be  withdrawn  and  granted  at  pleasure. 
If  our  system  and  the  principles  upon  which  our  Govern- 
ment is  founded  are  right,  then  any  of  our  liberties,  be  it 
of  speech,  press,  or  conscience,  is  an  indefeasible  right,  as 
much  as  the  right  to  hold  and  transmit  property. 

Now,  let  us  examine  the  reasons  given  by  some  of  the 
friends  of  the  Administration  for  their  act.  They  say  in 
time  of  war  we  cannot  regard  law  or  rights.  Indeed, 
not  ?  Then,  my  amiable  friends,  suppose  the  people 
would  learn  that  dogma  by  heart,  and  act  upon  it  by 
turning  out  of  power  the  whole  Administration,  rob  the 
banks,  or  do  some  other  equally  lawless  act,  could  you 
blame  them  ?  Would  it  not  be  a  lesson  which  you  have 
inculcated  and  instilled  ?  It  is  true  that  in  time  of  war 
measures  must  be  adopted  which  would  not  be  justified 
in  times  of  peace,  but  the  point  to  which  these  measures 
dare  go  is  where  indefeasible  rights  commence,  and  not 
one  step  farther.  You  cannot  in  consistency  with  our 
system  of  government  confiscate  my  property  to  help  you 
to  carry  on  the  war,  and  the  right  of  the  press  to  address 
itself,  with  perfect  freedom  to  the  masses,  has  hitherto 
been  regarded  in  the  same  light  as  the  sacred  rights  of 
property.  If  these  journals  whose  liberty  has  been  inter- 
fered with  address  themselves  to  a  miserable  minority 
they  can  do  no  harm  ;  but  if,  on  the  other  hand,  they 
are  the  exponents  of  the  opinions  of  a  large  class  in  the 
community,  a  blow  has  been  struck  at  their  rights  for 


in  PARTY  POLITICS  71 

which  the  Administration  can  never  sufficiently  atone 
to  an  outraged  people. 

Have  our  politicians  learned  so  little  in  the  school  of 
history  that  they  do  not  know  the  oppression  of  a  cause 
to  be  the  surest  way  to  benefit  it,  and  that  these  journals 
which  have  fallen  under  administrative  displeasure,  in  pre- 
serving a  sullen  and  enforced  silence,  are  really  more  elo- 
quent than  by  filling  their  leaders  with  invectives  against  the 
war  and  the  Administration  ?  Do  not  intolerance  and 
oppression  make  hypocrites  of  a  large  class  of  the  com- 
munity, and  thus  directly  tend  to  lower  public  morality  ? 
1^  is  advanced,  on  behalf  of  the  Administration,  that  they 
know  these  journalists  do  not  from  conviction  oppose  the 
Administration,  but  from  impure  and  corrupt  motives. 
Who  dares  to  judge  of  that  ?  What  man  so  pure  or  so 
exalted  that  he  can  with  justice  judge  the  motives  of  his 
fellow-beings  ?  If  the  fact  be  true,  as  alleged,  that  one 
or  more  of  the  proprietors  of  these  journals  are  base  and 
dishonourable  men,  does  it  alter  the  right  of  the  case  ? 
Have  base  and  dishonourable  men  no  rights,  and  can  we 
the  people  be  deprived  of  our  liberties  in  consequence 
thereof. 

You  may  be  right,  say  the  friends  of  the  Administra- 
tion, but  it  is  a  mere  suspension  of  a  certain  liberty,  the 
exercise  of  which  is  dangerous  for  the  present,  and  we 
will  grant  it  to  you  again  as  soon  as  present  circumstances 
have  altered.  I  do  not  want  to  enter  into  abstractions, 
but  really,  in  my  early  years,  I  had  always  understood 
that  the  people,  when  they  delegated  certain  powers  to 
their  governors,  reserved  to  themselves  some  trifles,  such 
as  liberty  of  speech,  conscience,  and  the  press,  and  that 
it  suited  the  whim  and  fancy  of  our  prudent  forefathers 
not  to  leave  the  exercise  of  these  rights  which  they  were 
absurd  enough  to  suppose  inalienable,  to  the  arbitrary 
rule  of  any  administration  under  any  circumstances  what- 
ever. And  can  you  really  suppose  that  this,  or  any  other 
administration,  will  not  find  an  excuse,  on  the  ready  plea 
of  necessity,  to  continue  a  domination  the  exercise  of 


72  LIFE  OF  SIMON  STERNE       CHAP. 

which  is  so  pleasant  and  convenient  to  the  rulers,  and 
proportionately  galling  to  the  ruled  ?  Are  we  so  sure  of 
our  liberties  that  we  can  permit  them  to  be  trifled  with 
by  any  Administration,  however  pure,  or  however  just 
that  Administration  may  be  ? 

I  feel  that  in  giving  expression  to  these  thoughts,  I 
but  imperfectly  express  the  feelings  of  a  large  class  of  the 
people  who  have  hitherto  earnestly,  even  zealously,  sup- 
ported the  Administration  in  their  attempt  to  put  down 
rebellion,  but  who  are  now  compelled  to  say  :  "  In  this 
labyrinth  of  complications  and  wrongs  we  cannot  follow 
you."  Nor  is  it  penned  with  any  ill-feeling  toward  the 
Administration,  but  from  an  earnest  desire  that  in  our 
hot  pursuit  to  right  our  wrongs,  we  do  not  endanger 
those  principles,  the  proper  exercise  of  which  has  exalted 
us  in  the  list  of  nations,  and  made  us  the  beacons  of  light 
and  of  hope  to  the  oppressed  in  the  whole  of  the  civilised 
world.  It  is  not  that  I  love  my  country  less,  but  that  I 
love  liberty  more. 

Mr.  Sterne's  first  taste  of  work  closely  related 
to  active  politics  was  in  the  organisation  of  the 
American  Free  Trade  League.  The  fundamental 
principle  of  that  organisation  was,  u  That  men 
should  have  the  right  to  exercise  their  industry, 
to  dispose  of  its  fruits  in  any  market  which  to  them 
shall  seem  best,  and  with  the  proceeds  to  buy 
whatever  and  wherever  they  please/'  It  protested 
against  the  paternal  interference  of  Government 
with  private  pursuits,  being  convinced  that  the 
less  Government  is  felt  and  seen,  the  better  for  all 
concerned.  It  believed  "  that  '  Protection  '  to  the 
Producer  is  Robbery  to  the  Consumer,  with  the 
added  hypocrisy  of  pretending  to  look  after  the 
latter 's  interest."  Early  in  1866  Mr.  Sterne 
appears  to  have  made  a  tour  of  the  West,  in  his 


in  PARTY  POLITICS  73 

capacity  of  Secretary  of  the  Executive  Committee 
of  the  League,  for  the  purpose  of  enlisting  recruits 
and  establishing  branches  for  the  organisation. 
His  activity  excited  the  attention  of  Horace 
Greeley,  and  drew  from  that  vigilant  sentinel  on 
the  watch-tower  of  protection,  one  of  his  character- 
istic tirades  against  the  "doctrinaires"  who  were 
warring  against  the  interests  of  American  industry. 
He  quotes  Mr.  Sterne  as  saying,  in  a  speech  at 
St.  Louis  :  "  I  have  been  asked  how  is  it  possible 
with  our  heavy  national  debt  to  organise  a  system 
of  free  trade  ?  Can  we  pay  the  interest  on  our 
national  debt  if  we  have  the  free  trade  system  ? 
My  answer  is,  I  believe,  logically  correct,  that 
for  the  very  reason  of  our  having  a  national 
debt,  it  is  necessary  for  us  to  inaugurate  a  policy 
of  free  trade — that  is  to  say,  a  policy  of  revenue 
tariff  interest,  and  not  a  policy  of  protective  tariff. 
Any  person  who  has  reflected  on  the  subject  will 
see  at  once  that  a  revenue  tariff  differs  in  every 
respect  from  a  protective  tariff.  A  protective 
tariff  is  levied  for  the  purpose  of  prohibiting  im- 
portations of  foreign  goods  and  other  goods.  A 
revenue  tariff  is  levied  for  the  purpose  of  courting 
the  importation  of  foreign  goods,  for  the  purpose 
of  getting  the  largest  amount  of  revenue."  All 
this  was,  of  course,  merely  a  new  evidence  to  Mr. 
Greeley  of  the  essential  depravity  of  all  free- 
traders, and  of  the  truth  of  his  persistent  accusation 
that  they  were  subsidised  by  British  gold  to  com- 
pass the  ruin  of  the  American  manufacturer.  In 
this  latter  view,  Mr.  Greeley  was  doubtless  greatly 
strengthened  by  an  address  issued  in  February 


74  LIFE  OF  SIMON  STERNE      CHAP. 

1866,  by  the  Free  Trade  Association  of  London 
to  the  American  Free  Trade  League  of  New  York. 
Mr.  Sterne  had  said  that  the  League  was  composed 
of  men  of  all  shades  of  political  opinion.  This, 
according  to  Mr.  Greeley,  conveyed  a  false  im- 
pression, and  was  intended  to  convey  it,  since,  in 
his  judgment,  "  there  are  not  four  persons  con- 
nected with  the  organisation  who  are  not  either 
already  in  full  communion  with  the  Democratic 
Party,  or  preparing  and  expecting  to  be  so  before 
the  next  Presidential  election."  Thus,  in  addition 
to  deriving  its  impulse  and  its  sinews  of  war  from 
Europe,  the  Free  Trade  League,  according  to  Mr. 
Greeley,  "looked  for  its  votes  to  the  Copper- 
heads." And  yet,  not  even  Mr.  Greeley  himself 
could  have  been  more  fervid  in  his  rejoicing  over 
the  triumph  of  the  Union  cause,  than  were  the 
London  Free  Traders  in  addressing  their  American 
brethren.  There  is  certainly  nothing  of  the 
"  Copperhead  "  sentiment  about  the  opening  pas- 
sage of  the  address  : — 

We  congratulate  the  American  people  most  cordially 
and  sincerely  upon  the  termination  of  that  gigantic  con- 
flict in  which  they  have  recently  engaged.  Especially 
do  we  rejoice  that  slavery  has  received  its  deathblow,  thus 
elevating  labour  from  its  degradation,  and  vindicating  for 
all  men  the  inalienable  right  of  personal  independence. 
We  earnestly  hope  that  every  breach  created  by  this  war 
may  be  speedily  and  effectually  healed,  and  that  all  your 
people,  in  whatever  part  of  the  Union  they  may  be 
dwelling,  may  unite  in  the  noble  task  of  so  reconstructing 
the  social  and  political  fabric,  that  the  result  of  this  fear- 
ful trial  may  be  a  national  existence  purified,  elevated,  and 
strengthened  by  the  terrible  ordeal  through  which  the 


in  PARTY  POLITICS  75 

nation  had  passed.  We  believe  with  you,  that  the  present 
time  is  most  auspicious  for  your  undertaking.  No  work 
can  be  more  worthy  to  supplement  the  one  just  completed 
than  that  of  securing  for  free  labour  the  right  of  freely 
exchanging  its  productions  in  the  markets  of  the  world. 
Indeed,  this  is  the  natural  consummation  of  the  task 
which  was  but  commenced  in  the  abolition  of  slavery. 
Free  trade  is  the  vital  element  of  free  labour  ;  without 
the  former,  the  latter  cannot  healthfully  exist.  The 
most  perfect  freedom  of  exchange  is  necessary  to  enable 
the  labourer  to  derive  the  full  value  and  advantage  of  his 
labour. 

Nor  was  the  editor  of  the  New  York  Tribune 
or  any  of  those  who  were  at  that  time  so  loudly 
celebrating  the  virtues  of  a  high  protective  tariff, 
and  so  recklessly  impugning  the  patriotism  of  those 
who  refused  to  agree  with  them,  capable  of  the 
statesmanlike  foresight  which  the  following  passage 
indicates,  and  with  which  Mr.  Sterne  and  his 
associates  were  in  thorough  sympathy  : — 

It  is,  however,  not  merely  in  relation  to  questions  of 
revenue  and  taxation  that  the  necessity  of  Free  Trade 
legislation  is  so  apparent,  as  in  relation  to  the  urgent  and 
herculean  task  now  devolving  upon  your  people,  viz. 
the  reorganisation  of  the  trade  and  industry  of  the 
Southern  States.  We  are  firmly  persuaded  that  the  most 
potent  ally  you  can  summon  to  your  aid  in  this  great 
work  is  the  principle  of  Free  Trade.  With  a  fertile 
climate  of  almost  unlimited  extent,  producing  articles 
which  are  required  throughout  the  globe,  with  abundance 
of  labour  waiting  employment  and  requiring  organisa- 
tion, the  unnatural  relations  formerly  subsisting  between 
capital  and  labour  being  happily  destroyed,  the  wisest 
course  you  can  adopt  is  to  throw  down  the  barriers  which 
prevent  the  world  from  becoming  your  customers  to  the 


76  LIFE  OF  SIMON  STERNE      CHAP. 

largest  possible  extent.  Adopt  freedom  of  trade  between 
the  United  States  and  the  entire  globe,  and  we  confidently 
predict  that  not  only  will  the  task  of  restoring  the  in- 
dustry of  the  South  to  its  former  productivity  be  com- 
paratively easy,  but  that  it  will  become  vastly  and  widely 
extended. 

The  attitude  of  Mr.  Sterne  toward  the  political 
problems  which  remained  to  be  solved  after  the 
war  is  fairly  indicated  in  his  preface  to  the  Con- 
stitutional History  and  Political  Development  of  the 
United  States^  written  in  1881.  He  recalls  the 
fact  that  European  statesmen  had  doubted,  and 
many  thoughtful  Americans  at  times  had  mis- 
givings whether  our  institutions  could  bear  the 
strain  of  the  conditions  in  which,  at  the  close  of 
the  war,  the  National  Government  was  placed. 
But,  looking  back  over  the  intervening  sixteen 
years,  he  was  able  to  say  that  while  the  ills  of  an 
improperly  laid  and  collected  revenue,  a  bad  civil 
service,  mischievous  methods  of  taxation  and 
corrupt  municipal  administration  still  existed,  none 
of  these  evils  could,  properly  speaking,  be  said  to 
date  from  the  war  period,  since  the  roots  of  them 
were  planted  many  years  before  the  slavery  agita- 
tion was  at  its  height.  Nearly  a  million  of  men, 
who  were  under  arms  at  the  close  of  the  war  had 
been  disbanded  and  reabsorbed  by  the  agricultural 
and  industrial  activities  of  the  country,  and  no 
appreciable  increase  of  crime  or  lawlessness  had 
been  manifest.  The  Government  had  returned  to 
a  sound  currency  from  a  depreciated  war  currency, 
notwithstanding  the  fact  that  great  masses  of  the 
people  believed  the  return  to  specie  payment 


in  PARTY  POLITICS  77 

would  be  the  ruin  of  individual  enterprise.  A 
large  proportion  of  the  debt  created  by  the  war 
had  already  been  paid  off ;  and  the  remainder,  by 
the  establishment  of  a  financial  credit  second  to 
none  in  the  world,  had  been  refunded  at  so  low  a 
rate  of  interest  as  to  reduce  the  burden  of  the  debt, 
after  taking  account  of  the  increase  of  population, 
to  but  a  third  of  what  it  had  been  at  the  close 
of  the  war.  The  revenue  of  the  country  was  so 
far  in  excess  of  its  financial  needs  that,  but  for  the 
ingenuity  of  politicians  in  devising  jobs  to  absorb 
public  funds,  a  bad  civil  service  and  governmental 
extravagance,  the  debt  would  have  been  reduced  in 
a  still  greater  degree. 

Mr.  Sterne  recognised  the  fact  that  all  these 
evidences  of  the  elasticity  of  our  institutions  which 
enabled  them  successfully  to  meet  unlooked-for 
emergencies,  had  elicited  the  admiring  expressions 
of  publicists  the  world  over,  and  invited  a  closer 
study  of  a  form  of  Government  which,  while 
securing  on  one  hand  individual  freedom  of  action, 
did  not  appear  to  lack  the  power  to  produce 
certain  results  which  were  supposed  to  be  among 
the  special  advantages  of  the  more  paternal  forms 
of  Government.  But  he  insisted  that  it  would 
be  puerile  in  the  extreme  to  attribute  to  their 
institutions  the  whole  of  the  prosperity  of  the 
people  of  the  United  States.  Any  constitutional 
form  of  Government  securing  freedom  of  action  in 
dealing  with  the  practically  inexhaustible  resources 
of  the  country,  among  which  he  reckoned  its  vast 
treasures  of  mineral  wealth,  its  fruitful  soil  and 
beneficent  climate,  coupled  with  a  geographical 


78  LIFE  OF  SIMON  STERNE      CHAP. 

situation  which  almost  wholly  excludes  foreign 
competition,  would  have  made  for  the  inhabitants 
of  the  vast  domain,  known  as  the  United  States,  a 
home  filled  with  comfort,  luxury,  and  wealth,  and 
would  have  attracted  seekers  of  fortune  from  every 
quarter  of  the  globe. 

Coming  down  to  the  purely  economic  aspect  of 
the  situation  and  prospects  of  the  country,  he  goes 
on  to  say — 

That  the  institutions  of  the  United  States  did,  how- 
ever, largely  favour  the  growth  of  material  wealth  cannot 
be  denied.  Not  to  speak  of  other  advantages  afforded  to 
individual  enterprise,  the  entire  absence  of  any  interstate 
custom-house  from  Maine  to  Florida,  and  from  the 
Atlantic  to  the  Pacific,  has  given  the  inestimable  and 
incalculable  advantages  of  free  trade  in  its  most  absolute 
form  over  a  larger  surface,  and  among  more  varied  con- 
ditions of  an  industrial  and  agricultural  character  than 
unimpeded  exchanges  exist  elsewhere  on  the  face  of  the 
globe.  While  it  is  true  that  in  more  recent  years  (since 
1846)  European  nations  have  let  down  the  barriers  of 
protection  toward  each  other,  both  by  treaty  and  more 
liberal  legislation,  yet  in  the  United  States  the  practical 
advantages  of  the  system  of  free  trade  commenced  almost 
synchronously  with  the  teaching  of  the  doctrine  by  Adam 
Smith  in  1776.  The  errors  of  protection,  which  still 
govern  the  legislation  of  the  United  States  in  its  relations 
with  foreign  countries,  and  to  some  degree  counterbalance 
the  benefits  thus  conferred,  bring  loss,  but  in  the  limited 
ratio  that  foreign  commerce  bears  to  a  nation's  internal 
exchanges  ;  and  as  the  ratio  of  foreign  commerce  is  at 
best  not  one  to  twenty  of  domestic  interchange,  the 
benefits  conferred  by  the  freedom  of  exchange  within  the 
United  States  must  have  been  out  of  all  proportion 
greater  than  the  injustice  inflicted  by  the  protective 
system  inaugurated  in  1861 — a  system  which,  if  the 


in  PARTY  POLITICS  79 

signs    of  the    times   do  not  mislead,   is   fast  crumbling 
away. 

The  system  has  had  a  longer  and  more  vigorous 
existence  than  Mr.  Sterne  was  disposed  to  accord 
to  it,  but  the  fact  that  the  opposition  to  it  has  been 
steadily  growing  in  strength,  and  was  never  more 
aggressive  than  it  is  to-day,  is  very  largely  due 
to  the  work  done  by  him  and  other  pioneers  of 
the  revenue  reform  movement  in  educating  the 
people  into  a  comprehension  of  the  essential  in- 
compatibility of  high  protective  duties  with  the 
continued  welfare  of  the  very  interests  they  were 
designed  to  foster.  About  the  same  time  that  the 
preface  was  written,  from  which  the  preceding 
quotations  are  made,  Mr.  Sterne  was  engaged 
in  actively  organising  a  State  Revenue  Reform 
League  for  the  purpose  of  advocating  a  change  in 
the  unequal  and  unjust  system  of  tariff  taxation  in 
the  direction  of  a  wider  commercial  freedom.  To 
promote  the  formation  of  associations  throughout 
the  State  to  carry  out  the  work  of  this  body,  Mr. 
Sterne  drafted  an  address  to  the  people  in  which 
he  submitted  certain  reasons  to  show  that  the 
necessity  for  the  proposed  reform  was  imperative 
and  immediate.  Among  these  were  the  following  : — 
Existing  laws,  by  levying  heavier  duties  upon  the 
necessaries  of  life  than  the  expenses  of  the  Govern- 
ment require,  impose  a  burdensome  tax  upon  the 
poor,  for  the  benefit  of  a  small  privileged  class, 
and  at  the  same  time  accumulate  annually  in  the 
National  Treasury  a  surplus  to  be  squandered 
in  extravagant,  if  not  corrupt,  legislation.  The 
claim  that  so-called  protective  tariff  laws  enhance 


8o  LIFE  OF  SIMON  STERNE      CHAP. 

the  wages  of  labour  had  repeatedly  been  shown  to 
be  fallacious,  and  was  only  advanced  by  those  who 
sought  to  retain  the  existing  system  for  the  purpose 
of  securing  protection  in  the  privileges  which  they 
enjoyed  at  the  expense  of  the  whole  people.  It  was 
submitted  that  the  system,  instead  of  benefiting, 
worked  a  great  injury  to  labouring  men.  It  in- 
creased the  cost  of  living,  it  so  enhanced  the  cost 
of  materials  upon  which  their  labour  was  expended, 
that  the  finished  product  could  not  hold  its  own 
in  the  markets  of  the  world.  Revenue  reformers 
demanded,  on  behalf  of  American  working-men, 
that  taxes  should  be  reduced  or  entirely  removed 
from  the  materials  used  in  their  industries,  in  order 
to  secure  an  enlarged  demand  at  home  for  finished 
goods,  and  an  outlet  for  the  surplus  product  of 
their  labour  in  the  open  markets  of  the  world. 

The  plea  was  submitted  to  the  judgment  of  the 
citizens  of  the  State  of  New  York  that  the  exercise 
of  the  taxing  powers  of  the  general  Government 
should  ever  be  regarded  with  jealous  scrutiny,  and 
that  when  these  powers  are  used  in  the  interest  of  a 
favoured  class  to  impose  unnecessary  burdens  upon 
American  labour  and  American  industry,  it  is  the 
duty  of  all  men  interested  in  the  cause  of  good 
government,  irrespective  of  party  affiliations,  to 
unite  in  an  effort  to  secure  the  enactment  of  such 
measures  of  reform  as  would  open  the  way  to  a 
more  healthy  commercial  life.  A  reform  in  the 
tariff  laws  had  been  for  some  time  demanded  by 
the  best  opinion  in  the  country,  and  the  Chief 
Executive  of  the  nation  (President  Arthur)  had 
recommended  such  a  reform  to  the  favourable 


in  PARTY  POLITICS  81 

consideration  of  Congress.  The  time  seemed  thus 
to  be  ripe  to  make  the  politicians  of  both  parties 
feel  that  the  citizens  of  the  State  had  a  common 
cause  in  seeking  to  sweep  away  an  unjust  and 
vicious  system  of  taxation. 

Never  recognising  mere  party  triumph  as  an 
end  in  itself,  Mr.  Sterne  continued  to  be  all  his 
life  the  steadfast  advocate  of  what  he  regarded  as 
the  principles  of  pure  Democracy  without  respect 
to  the  degree  of  acceptance  which  they  received  at 
the  hands  of  the  party  organisation.  He  had 
nothing  but  scorn  for  those  Democratic  leaders 
who  tried  to  dodge  the  tariff  question,  or  who 
sought  success  at  the  polls  by  a  surrender  to  the 
free  silver  lunacy.  From  the  earliest  efforts  to 
debase  the  currency  by  an  unlimited  infusion  of 
silver,  Mr.  Sterne  was  one  of  the  most  uncom- 
promising defenders  of  the  gold  standard.  In  a 
letter  to  the  Nation,  dated  February  7,  1878,  after 
referring  to  the  frequency  with  which  reference 
had  been  made  during  the  war  to  the  latent  powers 
in  the  United  States  Constitution,  "  which  from 
time  to  time  manifested  themselves  in  most  sur- 
prising forms,"  he  went  on  to  say — 

Now,  let  us  call  forth  the  reserve  powers  of  the 
States  and  localise  as  much  as  possible  the  consequences 
of  cheap  money  and  dear  commodities,  and  so  let  a 
fluctuating  currency,  uncertain  values,  and  absence  of 
commercial  and  financial  credit — as  chickens  and  curses 
are  said  to  do — roost  at  home.  The  Constitution  of  the 
United  States  says  :  "  No  State  shall  make  anything  but 
gold  and  silver  coin  as  tender  in  payment  of  debts." 
This  implies  that  the  States,  not  the  United  States,  shall 

O 


82  LIFE  OF  SIMON  STERNE      CHAP. 

have  control  of  the  subject  of  tender,  as  they  have  of  all 
matters  of  contract,  subject  to  the  limitation  that  such 
tender  must  be  "  gold  and  silver  coin."  The  extent  to 
which  either  shall  be  a  tender  is  not  set  forth. 

Mr.  Sterne's  suggestion  was  that  all  the  States 
not  affected  by  the  silver  theory  should  pass  a  law 
whose  essential  provision  should  be  that  all  debts, 
obligations,  and  contracts,  expressed  or  implied, 
should  be  discharged  and  dischargeable  only  in 
gold  coin  of  the  United  States,  issued  under  section 
3511  of  the  Revised  Statutes,  at  their  nominal 
value,  and  to  the  extent  only  of  $20,  should  such 
debts  be  dischargeable  in  silver  coin  of  the  United 
States  issued  under  section  3513  of  the  Revised 
Statutes  (trade  dollar). 

And  such  gold  coin  shall  be  the  sole  legal  tender  in 
payment  of  all  debts,  public  or  private,  at  their  nominal 
value  when  not  below  the  standard  weight  and  limit  of 
tolerance  provided  by  the  United  States  Coinage  Act, 
and,  when  reduced  in  weight  below  such  standard  and 
tolerance,  shall  be  a  legal  tender  at  a  valuation  in  pro- 
portion to  their  actual  weight ;  and  such  silver  coin  shall 
be  a  legal  tender  at  their  nominal  value  for  any  amount 
not  exceeding  $10  in  any  one  debt,  and  the  minor  coins 
of  the  United  States  shall  be  a  legal  tender  at  their 
nominal  value  for  an  amount  not  exceeding  25  cents^in 
any  one  payment. 

This  suggestion  evidently  met  the  approval  of 
the  editor  of  the  Nation,  for  the  leading  article  in 
the  same  issue  expands  and  applies  Mr.  Sterne's 
argument.  The  editor  points  out  that  it  was  folly 
to  suppose  that  by  accepting  the  Bland  Bill,  and 
making  the  best  of  it,  the  people  opposed  to  them 


in  PARTY  POLITICS  83 

would  be  able  to  satisfy  the  silver  fanatics.  On 
the  contrary,  there  was  every  reason  for  believing 
that  they  would  be  emboldened  to  try  other  ex- 
periments of  the  same  sort.  The  silver  movement 
had  begun  with  rational  bi-metallists  ;  it  had  ever 
since  been  passing  more  and  more  into  the  hands 
of  men  who  were  burdened  with  no  financial 
theories  whatever,  and  whose  ultimate  aim  was 
repudiation  and  unlimited  Government  money  of 
some  sort.  Any  sign  of  submission  would  lend 
this  class  more  strength  and  enterprise,  and  spread 
the  poison  of  communism,  already  very  rife, 
farther  through  the  ranks  of  the  working-men. 
Should  the  Bland  Bill  be  passed  over  the  Presi- 
dent's veto,  the  editor  urged,  as  Mr.  Sterne  had 
done,  that  every  effort  should  be  made  to  localise 
the  folly  by  State  legislation.  The  sane  States, 
which  contain  the  capital  of  the  country  and  most 
of  its  manufacturing  industries,  such  as  New 
England,  New  York,  and  Pennsylvania,  should 
legislate  promptly,  making  gold  exclusively  the 
standard  of  value,  and,  if  thought  desirable,  mak- 
ing silver  a  legal  tender  at  its  bullion  value  in 
gold.  This  would  meet  the  lunatics  and  criminals 
with  the  only  argument  which  lunatics  and  crimi- 
nals understand  —  the  argument  of  impossibility. 
It  would  save  the  business  of  the  country  from  a 
prodigious  aggravation  of  the  existing  disorder, 
and  would  cause  a  restoration  of  confidence,  by 
removing  that  dread  of  the  wild-cat  majorities  in 
Congress,  which  was  then  so  fatal  to  all  enterprise. 
Being  interviewed  about  that  time  as  to  his 
attitude  toward  the  question  which  threatened  to 


84  LIFE  OF  SIMON  STERNE      CHAP. 

divide  the  Democratic  Party,  Mr.  Sterne  said  : 
"  I  am  a  Democrat  who  believes  in  the  single  gold 
standard.  Any  party  that  deviates  from  an  honest 
money  policy  deserves  to  be  beaten,  and  in  my 
opinion  will  be."  The  principles  of  tariff  reform 
which  Grover  Cleveland  had  adopted  did  not 
appeal  more  strongly  to  Mr.  Sterne  than  the 
unyielding  character  of  Mr.  Cleveland's  attitude 
toward  the  question  of  honest  money.  Mr.  Sterne 
was  one  of  the  most  ardent  advocates  of  Mr. 
Cleveland's  election  in  1884;  he  threw  himself, 
with  characteristic  energy,  into  the  campaign  of 
1888  ;  and  he  was  one  of  the  hardest  worked 
of  the  Democratic  campaign  speakers  in  1892. 
When  the  party  organisation  finally  surrendered  to 
Bryanism  in  1896,  Mr.  Sterne  promptly  identified 
himself  with  the  movement  designed  to  rally  the 
democratic  supporters  of  the  gold  standard  to  the 
support  of  the  Presidential  ticket,  headed  by  John 
M.  Palmer  and  Simon  B.  Buckner.  He  believed 
that  on  the  supporters  of  this  movement  had 
devolved  the  support  before  the  American  people 
of  the  doctrines  and  traditions  of  the  Democratic 
Party,  and  the  following  declaration,  issued  under 
the  imprint  of  the  National  Democratic  Committee, 
was  a  thoroughly  accurate  expression  of  his  views  : — 

In  gross  betrayal  of  the  Democracy,  the  Chicago 
Convention  proclaimed  the  gospel  of  hate  between 
sections  of  the  country,  between  labour  and  capital, 
between  employer  and  workman.  It  demanded  the  de- 
basement of  our  currency,  which  means  the  dishonour  of 
the  nation,  the  repudiation  of  private  contracts,  and  the 
reduction  of  the  pay  of  the  labourer  to  one-half  his 


in  PARTY  POLITICS  85 

present  wage.  It  asserted  in  effect  the  right  to  pack 
courts  of  justice  for  the  purpose  of  reversing  the  decisions 
which  do  not  meet  with  popular  favour.  It  denied  the 
right  of  the  Federal  authority  to  protect  the  mails  and 
interstate  commerce,  upon  which  depend  the  very  exist- 
ence of  our  great  industrial  centres  and  the  markets  of 
our  farmers  ;  it  denied  this  right  even  after  peace  was 
broken,  blood  shed,  and  property  destroyed.  To  all  true 
Democrats  these  assertions  are  utterly  abhorrent.  Mr. 
Sterne  was  profoundly  sensible  of  the  fact  that  the  Demo- 
cratic Party  did  not  perish  with  the  triumph  of  repudia- 
tion and  anarchy  at  the  Chicago  Convention,  and  he  was 
equally  impressed  with  the  necessity,  in  the  event  of  the 
election  of  a  Republican  President,  that  a  powerful  and 
genuine  Democratic  organisation  should  stand  active  and 
conspicuous  before  the  country.  Such  an  organisation 
would  be  of  vital  consequence  to  safe  Federal  adminis- 
tration, to  the  sound  politics  of  the  country,  and  to  its 
security  against  an  extreme  and  perhaps  successful  reaction 
in  1900  to  excesses  like  those  threatened  by  Bryan  and 
Sewall. 

The  impression  which  Mr.  Sterne's  services  in 
this  campaign  left  on  the  minds  of  the  men  most 
competent  to  judge  of  their  value  may  be  inferred 
from  the  following  letter  addressed  to  him  by  Mr. 
Samuel  O.  Pickens,  a  leading  member  of  the  Bar 
of  Indianapolis,  and  dated  November  5,  1896  : — 

I  am  pleased  to  congratulate  you  on  the  result  of  the 
late  election,  and  I  want  to  thank  you  again  for  the 
services  you  rendered  in  this  State.  There  is  not  a  par- 
ticle of  doubt  that  the  stand  taken  by  Sound  Money 
Democrats  saved  this  State  to  McKinley.  One  of  the 
gratifying  things  to  me  is  that  this  election  has  proved 
that  in  times  of  great  peril  men  can  be  counted  on  to  lay 
aside  their  party  affiliations  for  the  time  being,  and  take 


86  LIFE  OF  SIMON  STERNE      CHAP. 

a  stand  against  doctrines  which  threaten  the  honour  and 
stability  of  our  institutions. 

To  Mr.  Sterne  and  many  of  those  who  acted 
with  him,  whether  as  Democrats  or  Republicans,  in 
the  cause  of  sound  money,  the  result  of  the  Presi- 
dential election  of  1896  had  also  demonstrated  the 
fact  that,  while  a  large  majority  of  the  American 
people  were  in  favour  of  the  maintenance  of  the 
gold  standard,  there  was  a  dangerously  heavy 
minority  ranged  on  the  other  side.  It  was  there- 
fore deemed  necessary  that  the  united  efforts  of 
patriotic  men  of  all  parties  for  national  honour  and 
sound  money  should  be  continued,  and  Mr.  Sterne's 
name  appears  among  the  signatures  of  a  hundred 
thoroughly  representative  citizens  of  New  York  as 
in  favour  of  the  immediate  formation  of  a  non- 
partisan  association,  to  be  named  the  "  National 
Sound  Money  League."  The  Monetary  Conven- 
tion held  at  Indianapolis  on  January  12,  1897, 
was  due  to  the  influence  of  this  body,  and  the  work 
which  was  there  formally  initiated  still  awaits  its 
final  fruition  in  Congressional  legislation.  Mr. 
Sterne  attended  the  Monetary  Convention  as  a 
delegate  of  the  New  York  Board  of  Trade  and 
Transportation,  and  never  ceased  to  labour  for  the 
principles  of  National  finance,  which  it  adopted, 
and  of  which  the  formal  and  final  recognition  of 
the  gold  standard  by  law  was  the  most  conspicu- 
ous triumph. 

Mr.  Sterne  made,  in  the  course  of  his  speech 
delivered  at  the  dinner  of  the  Democratic  Club  in 
New  York  on  January  28,  1896,  a  presentation 
of  the  duty  of  the  Democratic  Party  toward  the 


in  PARTY  POLITICS  87 

questions  of  the  hour,  which  will  remain  a  testi- 
mony alike  to  his  courage  and  his  sagacity.  He 
began  by  pointing  out  that  there  is,  in  every  party, 
a  constant  conflict  between  what  is  deemed  to  be 
expedient  for  the  moment  as  against  what  is  wise 
for  all  time.  The  temptation  to  sacrifice  principle 
for  expediency  is  greater  in  the  case  of  a  party  than 
it  is  in  the  case  of  an  individual,  because  a  party 
lives  by  popular  favour,  and  the  advantage  which 
is  gained  by  the  possession  of  power  seems  so  con- 
trolling as  to  offer  to  a  political  organisation  a  great 
temptation.  It  was  to  hold  up  the  standard  of 
principle,  and  to  admonish  the  assembled  Demo- 
crats that  nothing  was  to  be  gained  by  its  sacrifice, 
that  Mr.  Sterne  accepted  the  invitation  to  deliver 
this  address. 

He  went  on  to  say  that  many  of  the  time- 
honoured  principles  of  the  Democratic  Party  had 
ceased  to  be  questions  of  the  hour  ;  that  they  had 
either  become  antiquated  by  the  march  of  events, 
or  by  the  decisions  of  the  Supreme  Court  be- 
come imbedded  in  the  Constitution,  so  that  they 
were  no  longer  living  political  issues.  The  party 
announced,  through  its  spokesman,  Mr.  Cleveland, 
adhesion  to  the  principles  of  a  freer  commercial 
policy,  and  antagonism  to  that  perversion  of  the  tax- 
ing power  for  private  and  individual  gain,  which  is 
misleadingly  termed  "  Protection."  When  Presi- 
dent Cleveland  was  elected  in  1892  on  the  issue, 
then  squarely  made,  of  opposition  to  the  M'Kinley 
tariff  and  all  that  it  stood  for,  the  party  was 
pledged  to  uphold  the  doctrine  of  revenue  reform, 
and  to  apply  it  in  practice  by  a  revision  of  the 


88  LIFE  OF  SIMON  STERNE      CHAP. 

tariff.  The  President  was  inaugurated  while  the 
country  was  still  suffering  from  the  effects  of  the 
crisis  precipitated  by  the  Baring  failure.  Mr. 
Sterne  declared  it  to  have  been  then  his  conviction 
that  a  reduced  capacity  for  production,  consequent 
upon  the  restriction  of  credit,  made  it  wise  to 
postpone,  for  a  time,  the  new  policy  touching  tariff 
legislation.  He  then  felt  on  that  question  as  a 
physician  would  toward  a  patient  suffering  from  a 
tumour  which,  for  the  sake  of  safety,  it  had  been 
determined  should  be  extirpated.  If  in  the  interim 
between  this  decision  and  the  time  set  for  the 
operation  the  patient  were  seized  with  an  acute 
disease,  it  would  be  wise  to  postpone  the  operation 
— however  expedient  in  a  normal  condition — until 
the  patient  had  sufficiently  recovered  his  strength 
to  enable  him  to  bear  it  with  reasonable  hope 
of  success.  The  Treasury  needed  revenue  ;  the 
change  in  the  tariff  threatened  to,  and  did,  impair 
its  ability  to  obtain  such  revenue,  and  it  was  ex- 
pected that  the  impairment  would  be  made  good 
by  a  direct  tax  on  incomes.  The  Income  Tax 
Act,  then  deemed  of  doubtful  constitutionality, 
was  passed,  and  had  since  been  declared  by  the 
Supreme  Court  to  be  unconstitutional.  The  party 
was  thus,  at  the  very  beginning  of  its  progress 
toward  revenue  reform,  confronted  with  an  im- 
pairment of  the  National  revenues,  which  were 
further  reduced  by  the  commercial  depressson 
which  lessened  the  whole  productive  capacity  of 
the  nation,  and  Democracy  laid  itself  open  to  the 
charge — however  unjust  it  might  be — of  unwise 
administration  of  the  National  finances.  To  all 


in  PARTY  POLITICS  89 

these  causes  of  depression  were  added  the  failure 
of  our  cereal  crops,  and  the  abundance  of  the  crops 
of  Europe  rendering  the  Old  World,  to  a  large 
degree,  independent  of  the  American  supply.  But 
the  party  leaders  persisted  in  their  determination 
to  achieve  some  measure  of  revenue  reform,  and 
did  produce  a  vastly  improved  tariff,  based,  to  a 
degree  at  least,  upon  the  principle  that  Protection, 
as  such,  was  an  abuse  of  the  taxing  power. 

The  country  was  at  the  same  time  suffering 
from  another  legacy  of  the  protective  system, 
which  gave  to  the  producers  of  silver  a  claim  upon 
the  National  Treasury  for  the  purchase  of  their 
output,  and  which  was  beginning  to  produce  its 
natural  result  of  threatening  the  gold  basis  of  our 
currency,  and  thus  placing  us  out  of  harmony 
with  the  financial  systems  of  the  great  commercial 
nations  of  the  world.  This  danger  was  met,  and 
in  part  overcome,  by  the  repeal  of  the  Sherman 
Law,  but  the  country  was  suffering  then  and  con- 
tinued to  suffer  from  the  consequences,  not  only 
of  the  silver  purchases  but  of  the  mistrust  inci- 
dental to  keeping  the  Government  of  the  United 
States  in  the  banking  business,  by  the  issue  of 
various  forms  of  paper  money  with  differing 
promises  of  redemption.  All  these  had  to  be 
kept  on  a  level  so  that  the  gold  in  the  Treasury, 
pledged  specifically  for  a  redemption  for  a  part  of 
the  currency,  was  constantly  being  withdrawn,  and 
there  was  a  steadily  recurring  liability  to  render 
the  Treasury  unable  to  meet  its  gold  engagements 
in  gold. 

The  enemies  of  the  party  and  its  policy  charged 


90  LIFE  OF  SIMON  STERNE      CHAP. 

the  decline  in  business  activity  to  the  revenue 
tariff,  with  which  that  decline  had  absolutely 
nothing  to  do,  but  which  Mr.  Sterne  maintained, 
it  would,  under  normal  conditions,  have  had  a 
tendency  to  remove.  He  admitted  that  they 
obtained  a  great  many  adherents  by  drawing 
attention  to  the  difference  in  the  conditions  of 
prosperity  under  Republican  rule,  as  compared 
with  the  preceding  four  years  under  Democratic 
rule.  A  great  temptation  was,  therefore,  pre- 
sented to  the  Democratic  Party,  to  compromise 
its  position,  and  to  make  an  effort,  by  the  lure 
of  some  weak  form  of  protection,  to  gain  back  its 
majority  of  1892.  Mr.  Sterne  held  that  to  fall 
into  that  trap,  to  lower  the  party  standard,  was  to 
abdicate  the  position  of  a  great  party.  Its  obvious 
duty  between  that  time  and  the  date  of  the  election 
was  to  educate  the  people  of  the  United  States  to 
understand  that  the  tariff  bore  no  relation  to  the 
existing  depression  in  business  ;  that  to  follow  in 
the  footsteps  of  its  enemies  was  to  surrender  the 
reason  for  the  party's  existence.  If  protection 
were  held  to  be  justifiable,  the  Republican  Party, 
which  is  responsible  for  it,  and  is  wedded  to  it, 
and  which  has  the  confidence  of  all  who  profit  by 
that  system  of  taxation  for  private  gain,  is,  logi- 
cally, the  party  which  is  entitled  to  power.  Mr. 
Sterne  could  see  but  one  line  of  Democratic  duty, 
which  was  to  hold  aloft  the  party  standard  of 
principles  in  regard  to  the  tariff,  while  admitting 
that  a  mistake  had  been  made  in  attempting  to 
supplement  by  unconstitutional  means,  the  de- 
creased revenue  consequent  upon  a  reduction  of 


in  PARTY  POLITICS  91 

the  tariff  rates  —  a  consequence  that  would  not 
have  followed  such  reduction  had  not  causes, 
wholly  other  than  those  relating  to  the  tariff, 
conspired  to  continue  and  intensify  the  prevailing 
business  depression.  Relief  must  be  promised  to 
the  community  by  persistence  in  revenue  reform, 
and  by  the  removal  of  the  true  causes  of  the 
depression. 

Another  temptation  which  would  constantly 
beset  the  Democratic  Party  was  to  win  over  the 
silver  producer  and  those  people,  some  of  whom 
wanted  to  use  a  debased  currency  to  pay  off  their 
debts,  and  others  who  imagined  that  a  debased 
currency  gives  them  more  dollars  with  which  to 
supply  their  daily  wants.  Mr.  Sterne  pronounced 
the  demands  of  the  silver  producer  to  be  absolutely 
analogous  to  those  of  a  producer  of  iron  or  of 
cloth,  or  of  any  other  article  of  manufacture,  to 
have  the  general  public  interest  sacrificed  to  make 
a  personal  profit,  and  to  enrich  himself  by  levying 
and  collecting  a  tax  from  his  fellow  citizens.  It 
was  to  oppose  such  perversions  of  governmental 
functions  to  private  ends  that  the  Democratic 
Party  had  its  great  mission,  and  Mr.  Sterne  de- 
clared that  when  it  ceased  to  have  that  mission, 
in  every  form  in  which  it  might  manifest  itself, 
he,  for  one,  would  cease  to  boast  of  being  a 
Democrat. 

After  adverting  to  some  of  the  cruder  fallacies 
of  free  silver,  Mr.  Sterne  cited  some  reasons  why 
one  metal  should,  and  must,  in  every  community 
having  an  extensively  developed  commerce,  be  the 
basis  of  the  exchanges.  In  modern  times  loans 


92  LIFE  OF  SIMON  STERNE      CHAP. 

are  made  for  long  periods,  running,  in  the  case  of 
railway  mortgages  and  Government  bonds,  from 
thirty  to  fifty,  and  even  one  hundred  years.  The 
creditor  is  willing  to  forego  a  high  interest  for 
the  certainty  of  the  return  of  the  principal  at  the 
end  of  the  period  for  which  he  lends  his  money. 
He  is,  therefore,  not  willing  to  give  an  option  to 
his  debtor  to  return  the  principal  in  one  of  several 
metals,  whichever  happens  to  be  the  cheapest  when 
the  principal  becomes  due.  Mr.  Sterne  said  that 
within  the  period  of  his  own  observation,  interest 
had  gone  down  from  7  to  3  per  cent.  The  wages 
of  capital  had  thus  decreased  over  50  per  cent, 
while  the  wages  of  labour  had  increased  over 
100  per  cent.  It  was,  therefore,  idle  to  say  that 
a  gold  basis  begat  a  tendency  to  make  the  rich 
richer  and  the  poor  poorer.  On  the  contrary, 
the  rich  were  content  with  less  earning  power  on 
their  riches,  while  the  earning  power  of  the  poor 
had  more  than  doubled.  Thus,  if  there  were  any 
advance  in  the  value  of  gold,  from  decade  to 
decade,  it  was  more  than  made  up  by  the  reduc- 
tion of  the  interest  rate,  and  many  times  more 
than  made  up  by  the  willingness  of  the  capitalist 
to  lend  his  money  for  industrial  purposes.  The 
Democratic  Party  had  stood  for  honest  money  and 
a  stable  currency,  and  Mr.  Sterne  uttered  the 
warning  that  if  it  temporised  with  self-interested 
leaders  and  their  deluded  followers,  who  were 
willing  to  sacrifice  the  commercial  and  financial 
interests  of  the  country  for  their  own  ends,  it  is 
doomed  to  destruction,  because  it  fights  against 
light,  it  fights  against  civilisation,  it  fights  against 


in  PARTY  POLITICS  93 

the  permanent  interests  of  humanity.  The  warn- 
ing did  not  prevent  the  folly  of  the  Chicago 
Convention,  but  it  clearly  outlined  the  conse- 
quences of  the  surrender  then  made  to  the  baser 
elements  of  the  party.  It  is  not  too  much  to 
claim  that  this  added  warning  is  as  relevant  to 
the  party  conditions  of  to-day  as  it  was  to  those 
of  seven  years  ago. 

A  party's  only  excuse  for  its  existence  is  in  educating 
the  people  on  political  questions.  The  party  that  has  its 
ear  to  the  ground  for  the  purpose  of  catching  the  voice 
of  its  lowest  followers,  and  which  caters  wholly  to  the 
political  pit,  is  one  that  may  achieve  temporary  success, 
but  it  will  finally  go  out  of  existence,  because  public 
offices,  with  the  large  emoluments  and  advantages  which 
flow  from  the  possession  of  power,  are  given  to  them  by 
the  community  only  in  return  for  that  which  it  has  a 
right  to  ask  and  will  ultimately  insist  upon  getting, 
namely,  that  its  political  education  shall  be  increased  and 
its  general  development  and  intelligence  enhanced  by  the 
party  to  whom  it  has  given  so  much. 

Sincere  admirer  as  Mr.  Sterne  was  of  the  char- 
acter and  ability  of  President  Cleveland,  he  found 
it  impossible  to  give  unqualified  approval  to  the 
position  which  Mr.  Cleveland  had  taken  in  his 
celebrated  Venezuelan  message.  In  this  same 
speech  he  spoke  of  that  message  as  committing 
the  Democratic  Party  to  uphold  a  principle  of 
conduct  toward  the  nations  of  Europe,  which  is 
a  considerable  development  of  the  Monroe  doc- 
trine. As  he  understood  that  doctrine,  it  was  a 
declaration  that  interference  with  the  affairs  of 
our  sister  republics  on  this  continent  should  not 


94  LIFE  OF  SIMON  STERNE      CHAP. 

be  made  by  a  foreign  power,  if  the  honour  and 
safety  of  our  own  country  should  be  endangered 
thereby.  He  regarded  it  as  a  somewhat  startling 
assumption  that  the  American  Republic,  with  its 
70,000,000  of  people,  should  have  its  interests 
either  impaired  or  endangered  by  a  controversy 
about  a  boundary  between  a  Government  under 
a  European  protectorate,  and  one  of  the  South 
American  Republics.  He  proceeded  to  examine 
the  logical  effect  of  a  claim  that  we  are,  in  some 
form  or  another,  without  any  proclamation  or 
consent  of  the  Governments  affected  thereby,  the 
protecting  sovereign  of  all  the  peoples  of  this 
North  and  South  American  continent.  While 
such  a  position  opened  up  a  prospect  of  a  mag- 
nificent and  even  beneficent  protectorate  of  the 
whole  American  continent  against  injustice  or 
wrong  on  the  part  of  the  Governments  of  Europe, 
it  was  accompanied  by  a  grave  responsibility  which 
we  must  be  prepared  at  all  hazards  to  meet.  In 
Mr.  Sterne's  judgment,  such  a  claim  would  not 
be  accepted  by  the  nations  of  Europe,  having 
possessions  on  this  side  of  the  Atlantic,  without 
insisting  that  we  assume  the  duty  of  seeing  to  it 
that  our  wards  perform  all  their  international 
duties.  The  legal  doctrine  called  respondeat 
superior,  which  throws  upon  the  master  the  re- 
sponsibility for  the  wrongdoing  of  his  servant, 
is  one  that  would  be  applied  if  we  insist  that  all 
the  peoples  of  the  South  American  people  are  our 
wards.  When  they  refuse  to  pay  their  debts, 
when  they  fail  to  keep  their  pledges,  when  they 
make  unjust  reprisals,  when  they  imprison  or 


in  PARTY  POLITICS  95 

shoot  foreigners  or  confiscate  property,  it  is  not 
only  they  but  we  who  will  be  held  responsible  for 
such  wrongdoing.  Mr.  Sterne  took  occasion  to 
point  out  that  it  was  a  question  for  very  deliberate 
consideration  whether  the  Democratic  Party  was 
willing  to  accept  this  grave  responsibility.  Resolu- 
tions upholding  the  President,  and  hurling  defiance 
at  all  the  nations  of  the  earth  who  refused  to 
endorse  our  claim,  were  easily  passed,  and  would 
meet  with  a  ready  response  from  the  people  of 
the  United  States.  But  these  resolutions  and  the 
path  which  they  indicated,  should  not  be  entered 
upon  without  taking  into  account  the  commit- 
ment of  responsibility  which  they  involved. 


CHAPTER  IV 

ADVOCACY  OF  PROPORTIONAL  REPRESENTATION 

SPEAKING  in  1893,  Mr.  Sterne  said:  "  When  a  man 
has  carried  in  his  mind  for  twenty-five  or  thirty 
years  a  plan  of  reform  upon  a  political  subject,  and 
has  been  in  touch  with  the  practical  concerns  of  life 
during  the  whole  of  that  period  of  time,  if  that 
idea  has  not  been  driven  out  of  his  mind,  but  on 
the  contrary  has  been  strengthened,  it  is  proof 
either  that  there  is  something  in  the  idea  or  nothing 
in  the  head."  There  is  unquestionably  something 
in  the  idea  of  personal,  proportional,  or  minority 
representation,  and  there  was  a  great  deal  in  the 
head  in  which  it  found  an  early  lodgment.  In  the 
first  of  those  notable  public  deliverances  which 
commanded  the  attention  of  the  thinking  public 
of  New  York  in  the  later  sixties,  Mr.  Sterne  found 
the  seat  of  the  disease  which  affected  the  body 
politic  in  the  failure  to  make  our  system  of 
government  a  truly  representative  one,  and,  almost 
with  his  latest  breath,  he  urged  the  adoption  of 
some  system  of  proportional  representation  as  a 
means  for  the  improvement  of  the  municipal 
government  of  the  city  of  New  York. 

96 


CH.IV    RATIO  OF  REPRESENTATION     97 

Among  the  problems  which  the  nineteenth 
century  has  bequeathed  to  the  twentieth,  there  is 
none  quite  so  elusive  as  this  of  making  the  opinion 
and  will  of  every  voting  member  of  the  community 
heard  and  felt  in  the  body  elected  to  represent  it. 
And  yet  it  requires  no  argument  to  show  that, 
unless  some  adequate  means  is  found  of  correct- 
ing the  palpable  injustice  of  the  present  majority 
system  of  representation,  our  scheme  of  free  in- 
stitutions must  be  held  to  be  a  failure.  In  a 
report  on  Personal  Representation  prepared  in 
1867,  at  the  request  of  the  Personal  Representa- 
tion Society,  and  submitted  to  the  Convention  then 
engaged  in  revising  the  Constitution  of  the  State 
of  New  York,  Mr.  Sterne  took  the  ground  that  if 
the  doctrine  of  the  sovereignty  of  the  individual, 
and  the  arguments  for  the  natural  right  of  suffrage, 
are  not  an  empty  tissue  of  words,  they  mean  that 
each  individual  of  the  body  politic  having  the 
right  of  suffrage  should,  either  immediately  or 
mediately,  have  a  voice  in  the  framing  of  those 
laws,  to  which,  as  a  citizen,  his  obedience  is  de- 
manded. As  it  is  impracticable  to  call  the  people 
together  to  make  their  own  laws,  the  system  of 
representation  was  devised,  under  which  the  repre- 
sentative is  supposed  really  to  voice  the  opinions 
and  desires  of  the  represented.  If,  at  the  outset, 
each  vote  of  the  constituent  body  had  been  re- 
garded in  the  light  of  a  power  of  attorney  or 
proxy,  and  the  representative,  in  casting  his  vote 
in  the  representative  body,  had  actually,  instead  of 
constructively,  cast  the  votes  of  the  voters,  and 
thus  actually  had  represented  the  votes  of  his  con- 

H 


98  LIFE  OF  SIMON  STERNE      CHAP. 

stituents,  the  taking  of  the  vote  in  the  representative 
body  would  be  in  fact  what  it  is  now  only  in  name, 
representative.  The  indictment  against  our  present 
electoral  scheme  is  that  it  is  not  what  it  pretends 
to  be,  that  it  does  not  effect  the  representation  of 
the  people,  but  only  of  a  part  of  the  people.  By 
the  acceptance  of  the  system  of  majority  repre- 
sentation, we  virtually  disfranchise  almost  one-half 
of  those  who  have  concededly  the  right  to  vote 
upon  public  measures.  In  representing  a  majority 
only  of  the  actual  voters,  and  leaving  the  minority 
unrepresented,  an  act  of  injustice  is  done  similar 
to  that  of  excluding  by  main  force  the  minority 
of  the  citizens  of  a  free  community  from  attending 
and  urging  their  views  at  a  public  meeting  con- 
vened for  the  purpose  of  making  laws  or  deciding 
upon  questions  of  public  policy.  Clearly,  any  act 
passed  at  the  public  meeting  of  such  a  majority, 
formed  by  the  forcible  exclusion  of  the  minority, 
would  not  be  an  act  of  the  people.  The  act 
passes,  say,  by  a  bare  majority  of  that  minority. 
Add  to  the  defeated  minority  of  the  majority  the 
excluded  minority,  who  were  not  permitted  to 
attend  the  meeting,  and  you  have  a  measure  to 
which  the  majority  of  those  who  were  entitled  to 
votes  are  opposed,  which  is  nevertheless  enacted 
into  law  by  a  minority  in  the  name  of  all  the  people, 
and  to  which  all  are  expected  to  yield  obedience. 

Mr.  Sterne  had  no  difficulty  in  showing  that 
what  is  decided  at  the  polls  is  not  whether  one  or 
the  other  public  policy  shall  prevail,  but  whether 
one  or  the  other  party  shall  be  represented  in  the 
representative  body,  a  widely  different  thing.  Ad- 


iv       RATIO  OF  REPRESENTATION       99 

mitting  the  sovereignty  of  the  people,  the  injustice 
remains  the  same,  whether  they  are  disfranchised 
by  brute  force,  or  by  the  operation  of  the  law. 
In  meeting  the  obvious  objection  that  the 
majority  will,  in  any  event,  have  to  make  laws 
for  the  minority,  even  when  all  are  represented, 
Mr.  Sterne  simply  reiterated  the  right  of  the 
minority  to  take  part  through  their  representatives 
in  the  deliberations  preceding,  and  finally  to  vote 
upon  every  measure,  which,  as  citizens,  affects  their 
interest.  When  the  minority  in  proportion  to  its 
numbers  is  fully  represented  in  the  representative 
chambers,  he  held  that  the  majority  of  a  majority 
— which  is  probably  in  point  of  fact  a  minority  of 
the  whole  people — cannot  pass  and  enforce  laws 
which  affect  the  whole  community,  on  the  pretence 
that  it  represents  the  people  ;  but  every  measure 
would  have  to  be  in  fact,  what  it  is  now  in  name — 
a  majority  measure — before  it  could  become  law. 
The  reform  to  be  promoted  by  the  substitution  of 
personal  for  majority  representation  is,  therefore, 
one  which  rather  tends  to  promote  the  better 
securing  of  a  true  system  of  government  by  the 
majority,  and  instead  of  aiming  to  supplant  the 
rule  of  the  majority  by  the  rule  of  the  minority, 
it  tends  to  make  our  institutions  more  democratic, 
by  placing  power  in  the  hands  of  a  real,  instead  of 
a  fictitious  and  sham  majority. 

In  a  lecture  delivered  in  1869,  at  the  request 
of  the  trustees  of  the  Cooper  Union,  Mr.  Sterne 
made  the  broad  declaration :  "  When  you  have 
decentralised  your  Government,  when  you  have 
taken  from  the  Legislature  the  power  to  pass 


ioo          LIFE  OF  SIMON  STERNE      CHAP. 

special  laws,  when  you  have  deprived  the  politician 
of  the  food  upon  which  he  feeds,  when  you  have 
restricted  government  to  its  primary  duties,  the 
administration  of  justice  and  police  duty,  one  thing 
more  remains  for  you  to  do,  and  that  is  to  make  your 
Government  what  it  is  not  now — a  representative 
system  of  Government."  By  the  adoption  of  the 
majority  instead  of  the  totality  system  of  repre- 
sentation, we  have  virtually  disfranchised  all  those 
who  in  any  particular  district  do  not  belong  to 
the  dominant  party.  We  have  assumed  that 
because  the  majority  of  the  people,  in  their 
sovereign  capacity,  had  the  right  to  enact  the 
laws,  therefore,  by  a  parity  of  reasoning,  the 
majority  of  the  electors  of  any  particular  district 
had  solely  the  right  to  send  a  representative.  The 
remedy  for  the  patent  injustice  of  this  system  was 
declared  by  Mr.  Sterne  to  be  the  substitution  of 
personal  for  majority  representation.  He  pro- 
posed to  accomplish  this  by  making  the  representa- 
tive the  actual  agent  for  the  voters  who  have  cast 
their  ballots  in  his  favour,  he  holding  as  many 
"  proxies  as  he  has  in  his  election  received  in- 
dividual votes.  Being,  therefore,  the  embodiment 
of  the  votes  cast  for  him,  the  representative's 
voice  on  each  question  coming  up  for  decision  in 
the  Legislative  Chamber  would  count  for  as  many 
votes  as  he  received  at  the  polls.  He  explained 
the  operation  of  such  a  system  in  New  York 
State  as  follows  : — The  State  of  New  York  has 
(1869)  about  800,000  voters.  If  it  be  desirable 
to  have  no  more  than  the  number  of  members 
which  compose  the  present  assembly,  by  dividing 


iv       RATIO  OF  REPRESENTATION      101 

this  number  of  votes  by  128,  the  number  of  seats, 
you  have  a  quotient  of  a  trifle  over  6000  votes 
necessary  to  elect  a  representative,  as  the  minimum 
number  of  proxies  or  powers  of  attorney  necessary 
to  entitle  a  candidate  to  a  seat.  Every  person 
receiving  at  any  election  for  members  of  Assembly 
a  larger  number  of  votes  than  the  minimum  quota 
fixed  by  law,  should  be  deemed  elected  ;  and  each 
member  should  be  entitled  to  cast  in  the  Legis- 
lative body  upon  every  measure  or  act  coming  to  a 
vote,  the  number  of  ballots  cast  for  him,  and  which 
he  represents,  be  they  6000  or  20,000.  The  people 
then,  in  point  of  fact,  would  upon  every  measure 
vote  through  their  agents,  the  representatives,  as 
though  they  were  owners  of  shares  of  stock  in  a 
railroad  or  mining  corporation,  and  with  like  effect. 
This  differed  very  considerably  from  the  plan 
of  proportional  representation  which  had  been 
presented  a  dozen  years  before  by  Mr.  Thomas 
Hare  of  LoncTon,  in  a  pamphlet  which  took  by 
storm  that  part  of  the  intellectual  world  which 
devoted  itself  to  the  philosophical  consideration  of 
politics.  In  1871  Mr.  Sterne  published  a  book 
on  Representative  Government  and  Personal  Re- 
presentation. This  was  an  attempt  to  make  Mr. 
Hare's  work  intelligible  to  American  readers,  but 
it  consisted  in  the  main  of  an  entirely  original 
treatment  of  the  plans  which  had  been  suggested 
for  the  reform  of  the  prevailing  system  of  repre- 
sentative government.  In  his  introduction  to 
this  compendious  study  of  the  subject,  Mr. 
Sterne  insists  that  representative  government  "  as 
the  one  important  fact  of  contemporaneous  political 


102          LIFE  OF  SIMON  STERNE      CHAP. 

history,  is  so  pre-eminent  that  every  examination 
of  its  basis,  its  development,  and  its  proper  ap- 
plication, cannot  but  be  of  the  utmost  immediate 
practical  importance."  The  questions  suggested 
by  this  examination  are  of  such  weight  and  com- 
prehensiveness that  almost  all  the  political  questions 
of  the  day  find  a  solution  therein,  and  the  adoption 
of  the  suggested  remedy  would  be,  to  use  the 
language  of  John  Stuart  Mill,  "  a  specific  against 
almost  all  the  ills  of  government  which  are  inher- 
ent to  our  own  system.''  To  illustrate  the  import- 
ance to  the  citizens  of  the  interests  which,  in  our 
own  country,  are  confided  to  representative  bodies, 
Mr.  Sterne  cited  the  fact  that  in  all  matters  per- 
taining to  hygienic,  criminal,  and  preventive  police, 
he  is  dependent  upon  the  representative  body  of 
his  city  or  town  ;  in  all  matters  referring  to  his 
personal  status,  his  property,  and  the  laws  which 
are  to  govern  him  therein,  he  is  dependent  upon 
the  Legislature  of  his  State  ;  in  all  matters  touching 
his  relations  as  citizen,  commercially,  as  belligerent, 
or  as  ally,  to  the  inhabitants  of  other  countries, 
he  is  dependent  upon  the  National  Representative 
Chamber.  In  practice,  there  are  no  rights  reserved 
to  the  people  beyond  and  above  representative 
control.  Our  bills  of  rights  in  our  constitutions 
are  so  many  requests  by  the  people  to  the  legis- 
lative bodies,  not  to  legislate  upon  certain  subjects ; 
but  these  requests  have  been  generally  disregarded 
when  a  strong  tide  of  public  opinion  has  made  it 
safe  to  break  the  restriction.  Waiving  the  question 
of  whether  or  not  this  tendency  to  the  consolida- 
tion of  power  in  the  representative  chambers  is  for 


iv       RATIO  OF  REPRESENTATION     103 

the  good  of  society,  Mr.  Sterne  argued,  with 
obvious  force,  that  its  existence  as  a  fact  makes 
the  inquiries  into  the  proper  formation  of  these 
bodies  and  the  mode  of  election  of  their  members 
the  one  transcendent  political  question. 

While  in  the  course  of  the  evolution  of  free 
institutions  under  the  limitations  of  monarchy  and 
its  cognate  restraints,  the  growth  of  the  represen- 
tative system  may  be  more  or  less  irregular  in  a 
country  like  ours,  whose  government  is  based, 
theoretically,  upon  legal  and  political  equality  in 
the  status  of  all  citizens,  it  ought  to  be  possible 
to  arrive  at  the  ideally  best  system  of  repre- 
sentation. Mr.  Sterne  recognised  the  fact  that, 
in  suggesting  radical  changes  in  the  established 
methods  of  exercising  the  suffrage,  he  would  run 
counter  to  the  prepossessions  of  that  numerous 
class  who  believe  the  Constitution  of  1789  to  be 
the  highest  embodiment  of  human  wisdom,  and 
who  regard  any  one  venturing  to  suggest  an 
improvement  on  that  instrument  as  guilty  of  an 
act  of  impertinent  presumption.  But  he  insists 
that  while  the  members  of  the  Constitutional 
Convention  did  a  useful  and  important  work, 
they  were  very  far  from  creating  an  ideally  perfect 
Government.  That  the  framers  of  the  Constitu- 
tion did  not  foresee  the  extent  to  which  party 
government  would  be  carried  in  the  United  States 
is  clearly  evidenced  by  the  electoral  college  clause. 
But  it  is  this  very  party  system  which  has  cor- 
rupted, and  threatens  still  further  to  corrupt,  not 
only  our  Government,  but,  through  it,  the  people ; 
and  to  remove  that  yoke  is  a  more  difficult  task 


io4          LIFE  OF  SIMON  STERNE      CHAP. 

than  the  thirteen  colonies  had  before  them  when 
they  rebelled  from  the  mother-country,  and  the 
attainment  of  success  therein  a  far  greater  step  in 
the  direction  of  human  freedom  than  was  gained  by 
the  successful  issue  of  the  War  of  Independence. 

Adverting  to  the  fundamental  blunder  of  our 
representative  system,  Mr.  Sterne  proceeds  to 
argue  that  we  have  confounded  two  independent 
and  entirely  different  political  ideas  and  processes 
— the  right  of  representation  and  the  right  of 
decision.  The  principle  of  representation  is  based 
upon  the  assumed  right  on  the  part  of  the  citizen 
to  take  part  in  the  business  of  making  the  laws 
which  are  to  govern  him.  As  there  are  practical 
difficulties  in  the  way  of  his  doing  so,  he  must 
appear  by  deputy — each  man  is  entitled  thus  to 
appear  by  deputy.  The  machinery  of  represen- 
tation, of  voting,  and  of  election  is  devised  to 
accomplish  this  end.  It  does  not  accomplish  it ; 
it  wastes  from  one-fourth  to  one-half  the  votes 
of  a  community.  Even  the  majorities  that  are 
represented  are  unfairly  and  improperly  repre- 
sented, since  the  voter  is  compelled  to  sink  his 
individuality,  and  oftentimes  his  best  political 
opinions,  for  the  purpose  of  belonging  to  the 
represented  class.  Two  false  conceptions  have 
prevented  the  representative  chamber  from  being 
what  Mirabeau  said  it  ought  to  be,  a  reduced 
picture  of  the  people — their  opinions,  aspirations, 
and  wishes  :  first,  that  the  right  of  the  majority  to 
govern  carries  with  it  the  right  of  the  majority  to 
sole  representation  ;  and,  second,  that  countries, 
states,  districts,  and  counties  have,  as  mere  geo- 


iv       RATIO  OF  REPRESENTATION      105 

graphical  subdivisions,  interests  distinct  from  those 
of  the  people  who  inhabit  them. 

To  make  clearer  the  nature  of  the  fallacies 
which  underlie  the  popular  view  of  majority 
representation,  Mr.  Sterne  imagines  the  citizens 
of  Athens  met  to  consider  the  project  of  a  repre- 
sentative body  to  take  the  place  of  the  assembly  of 
the  whole  people,  and  he  puts  into  the  mouth  of 
Kleon,  the  demagogue,  the  advocacy  of  a  plan 
embodying  the  details  of  our  district  system  of 
representation.  Against  this  he  makes  Thucydides 
speak  in  indignant  protest,  in  an  address  of  charac- 
teristic nobility  of  sentiment  and  elevation  of  view. 
The  following  extract  from  it  has  as  direct  a  bearing 
on  the  political  problems  of  to-day  as  it  had  on 
those  of  thirty  years  ago  : — 

Kleon  artfully  says  that  in  cutting  up  the  city  into 
districts,  all  of  the  interests  are  sure  of  a  hearing.  This  is 
a  new  idea  in  our  politics.  Districts,  so  many  acres  of 
land,  have  no  interests  as  such;  the  freemen  therein  have, 
and  these  freemen  come  here  and  represent  these  separate 
interests  in  their  own  persons  when  there  are  such 
interests,  a  circumstance  which  seldom  occurs,  as  it  is 
fortunately  not  often  that  a  part  of  our  city  has  an 
interest  different  from,  and  antagonistic  to,  the  interests 
of  the  whole  ;  and  when  such  arise,  no  great  harm  is  done 
if  they  are  overridden,  as  they  are  generally  dangerous. 
They  are  justly  considered  of  importance  in  the  scheme 
of  Kleon,  as  that  should  be  called  a  plan  to  foster  and 
develop  all  the  sinister  elements  of  the  worst  elements  of 
our  body  politic. 

Then,  again,  let  me  cast  for  a  moment  your  horo- 
scope :  If  Kleon  prevails,  you  flatter  yourselves  that  the 
best  men  in  Athens  will  be  the  representatives.  Never ! 
the  most  popular  men  will,  and  such  are  very  far  from 


106          LIFE  OF  SIMON  STERNE      CHAP. 

being  the  best.  The  men  who  are  the  physicians  of  our 
souls,  who  tell  us  unpleasant  but  wholesome  truths,  who 
stem  and  breast  the  waves  of  popular  opinion  when  they 
run  counter  to  their  highest  conceptions  of  right, — such 
men,  the  most  useful  among  us  in  political  life,  will  be 
doomed  to  silence  and  inaction.  The  oily-tongued 
flatterer,  the  wily  corruptionist,  the  superficial  gabbler, 
the  panderer  to  the  greed  and  lust  of  the  majority, — such 
and  such  only  will  you  have  to  pass  your  laws.  Then 
there  will  be  an  evil  which  will  arise  from  this  scheme, 
the  consequence  of  which  it  is  easy  to  foresee.  You 
divide  the  people  permanently  into  majorities  and  minori- 
ties— a  division  which  is  now  but  accidental,  exists  at  the 
moment  when  we  pass  a  law,  is  wiped  out  immediately 
thereafter.  .  .  .  Give  exclusive  representation  to 
majorities,  and  you  create  parties  whose  opposition  to  each 
other  will  be  permanent — one  opposing,  as  a  duty  to 
itself,  all  that  the  other  party  proposes,  however  bene- 
ficial that  proposition  may  be  for  the  public  weal.  You 
divide  the  people  into  two  hostile  camps,  struggling  with 
varying  success  for  the  mastery;  and  that  struggle,  carried 
on,  as  it  will  be,  with  all  the  bitterness  of  party  strife, 
with  the  use  of  every  means,  however  unconscientious, 
will  demoralise  the  whole  community  and  destroy  the 
Republic.  Not  only  will  the  organised  majority  be  a 
despotism,  compared  with  which  the  despotism  of  one 
man  is  as  naught,  for  the  despot  must  needs  fear  a  people 
in  revolt  or  the  assassin's  knife  ;  but  a  majority  is  acted 
upon  neither  by  fear  nor  by  conscience.  That  minority 
who  are  now  free  voters,  who  openly  speak  their  mind, 
will  then  become,  when  the  majority  is  very  great  against 
them,  and  they  are  hopelessly  excluded  from  representa- 
tion, conspirators  who  will  sell  themselves  to  different 
leaders  of  the  majority.  Parties,  when  about  equally 
balanced,  outbidding  each  other  for  mastery  with  corrupt 
bargains,  or,  when  not  evenly  balanced,  the  one  in 
majority  an  organised  tyranny,  overriding  all  constitu- 
tional checks,  and  the  minority  a  band  of  conspirators, — 


iv       RATIO  OF  REPRESENTATION      107 

such  is  the  not  very  distant  future  which  Kleon's  plan  is 
preparing  for  you. 

The  plan  of  representation  which  Thucydides 
presents  in  place  of  the  one  which  he  assails 
with  so  much  force  is  intended  to  represent  the 
whole  community,  and  be  a  miniature  picture 
of  the  different  opinions  which,  for  the  time 
being,  exist  in  the  minds  of  the  people.  It  is 
that  the  number  of  representatives  in  the  law- 
making  power  shall  not  be  more  than  200, 
and  as  there  are  about  200,000  freemen  in 
the  city,  that  would  give  one  representative 
to  each  totality  of  1000  voters,  so  that  each 
opinion  shared  by  the  -^w^  °^  tne  whole 
people  would  be  sure  of  a  representative.  He 
offers  another  plan,  calculated  to  achieve  the 
same  result,  which  is  to  regard  each  vote  as  a 
power  of  attorney,  and  allow  none  to  enter  the 
legislative  body  who  holds  less  than  1000  of 
such  powers,  and  then  let  the  representative  cast 
in  the  chamber  either  as  many  votes  as  have  been 
cast  for  him  or  one  for  each  totality  of  1000 
votes  that  he  holds.  The  Legislature  would  thus 
never  have  more  than  200  members,  but  might 
have  many  less  than  that  number.  Apart,  how- 
ever, from  such  matters  of  detail,  the  sum  of  the 
argument  is  that,  in  changing  a  pure  democracy 
into  a  representative  government,  the  whole  people 
are  entitled  to  representation,  and  only  where  the 
whole  people  are  so  represented  can  the  taking  of 
the  vote  in  the  representative  body  be  deemed 
equivalent  to  taking  the  sense  of  the  people  in 
general  meeting  assembled.  Unhappily,  as  Mr. 


io8          LIFE  OF  SIMON  STERNE      CHAP. 

Sterne  remarked,  representative  government  as  it  is 
is  the  plan  of  Kleon,  the  demagogue.  Representa- 
tive government  as  it  should  be  is  one  representing 
all  interests  and  opinions  of  the  community,  in 
proportion  to  their  numerical  strength,  by  some 
such  plan  as  is  placed  in  the  mouth  of  Thucydides. 
A  direct  consequence  of  the  majority  system  of 
representation  is  the  necessity  of  creating  a  party, 
adopting  a  party  name,  and  putting  forward  some 
party  tenet  or  dogma.  In  Mr.  Sterne's  judgment, 
it  is  not  usually  the  political  tenet  which  has  caused 
the  party,  but  the  party  which  has  created  the  tenet. 
In  none  of  these  things,  any  more  than  in  the  choice 
of  their  representative,  can  the  members  of  the 
majority  usefully  ask  themselves  what  they  ought 
to  do — the  only  practical  question  is  what  will 
be  successful.  Thus,  the  process  of  creating  a 
majority  demoralises  most  of  those  who  compose 
it,  because  it  excludes  the  action  of  their  higher 
moral  attributes,  and  brings  into  operation  the 
lower  range  of  motives.  They  are  compelled  to  dis- 
regard all  that  tends  to  individuality,  and  therefore 
all  genuine  earnestness  of  opinion  ;  to  discard  their 
political  knowledge,  their  deliberate  judgment,  their 
calm  and  conscientious  reflection.  All  these  must 
be  brought  to  a  conformity  with  those  who  possess 
the  least  of  these  qualities.  The  same  injurious 
influences  operate  in  some  measure  on  minorities 
whenever  they  make  a  decided  stand  for  the  purpose 
of  contesting  an  election;  the  most  intelligent  will 
submit  to  the  more  numerous,  except  that  in  the 
case  of  minorities  the  greater  apprehension  of  defeat 
may  have  led  the  more  numerous  element  to  raise 


iv       RATIO  OF  REPRESENTATION      109 

their  standard  of  choice  in  order  to  increase  their 
hopes  of  success. 

Simultaneously  with  this  process  of  deteriora- 
tion among  those  who  compose  the  active  parties, 
there  is  produced  a  result  even  more  fatal  to  the 
design  of  true  representation  among  another  large, 
intelligent,  and  more  scrupulous  class  of  persons, 
who  feel  no  disposition  to  make  themselves  the 
instruments  of  giving  effect  to  the  views  of  others 
with  whom  they  have  no  common  object  or  sym- 
pathy. These,  therefore,  take  no  part  in  the 
business  of  choosing  those  who  are  nominally  to 
represent  them.  Mr.  Sterne  calculated  that  in 
1869  only  71  per  cent  of  those  entitled  to  the 
suffrage  cast  their  votes  in  the  State  of  New  York  ; 
in  1862  less  than  78  per  cent ;  and  in  1861  but 
64  per  cent  of  the  voting  population  were  recorded 
at  the  polls.  This  voluntary  abstention  from 
exercising  the  highest  duty  of  the  citizen  arose 
mainly  from  the  fact  that  many  men,  not  liking 
the  choice  of  evils  which  party  machinery  presented 
to  them,  preferred  to  disfranchise  themselves  rather 
than  become  party  to  the  elevation  of  unfit  and 
improper  men  to  political  power.  Countless  ex- 
hortations of  the  party  press,  urging  such  men  to 
take  an  interest  in  party  politics,  would,  Mr. 
Sterne  believed,  ever  prove  unavailing  so  long  as 
these  men  instinctively  felt  that  the  exercise  of 
this  right,  under  its  present  form,  is  a  delusion 
and  a  snare.  If  they  belong  to  the  minority  in 
opinion,  they  throw  away  their  votes,  as  repre- 
sentation is  denied  to  the  minority.  If  they  belong 
to  the  majority,  they  may  be  compelled  to  vote 


no          LIFE  OF  SIMON  STERNE      CHAP. 

for  men  who  turn  uppermost  in  the  machinery  of 
party,  and  in  whose  professions  of  readiness  to 
carry  out  the  party  principles  they  have  no  faith. 

A  system  which  divides  people  into  adverse 
parties — arrayed  under  formal  names,  which  are 
themselves  exaggerations,  calculated  to  excite 
hostility  where  none  really  exists — has  thus,  Mr. 
Sterne  argued,  the  effect  of  preventing  the  expres- 
sion of  the  true  and  individual  opinions  of  the 
members  who  compose  either  party.  It  lowers 
the  force  of  thought  and  conscience,  reduces  the 
most  valuable  voting  elements  to  inaction,  and 
converts  the  better  motives  of  those  who  act  into 
an  effort  for  success  and  a  mere  calculation  of  the 
means  to  accomplish  it.  The  infirmities  of  repre- 
sentative institutions  are  a  natural  result  of  the 
imperfections  of  the  system  which  gives  them 
birth.  In  addition  to  not  representing  the  opinions 
of  those  whose  votes  elect  its  members,  the  repre- 
sentative body  does  not  represent — first,  those  who 
abstain  from  voting;  and,  second,  the  minority, 
or  possibly  the  majority,  of  those  who  have  voted 
for  unsuccessful  candidates.  By  way  of  illustrat- 
ing the  limitations  which  our  party  system  imposes 
on  the  freedom  of  choice  of  the  voter,  Mr.  Sterne 
cited  the  following  example  : — A.  is  a  voter  in  the 
State  of  New  York,  in  sympathy  with  the  system 
of  reconstruction  of  the  Southern  States  adopted 
by  the  dominant  majority  in  Congress  ;  he  is  also 
a  free-trader,  and  therefore  opposed  to  the  fiscal 
measures  of  this  same  dominant  majority.  The 
Party  places  before  him,  as  a  candidate  for  the 
House,  a  Republican,  who  is  a  Protectionist ;  if  he 


iv       RATIO  OF  REPRESENTATION     in 

deems  free  trade  of  less  importance  than  the 
question  of  reconstruction,  he  votes  for  one  who, 
as  he  well  knows,  will,  in  the  representative  body, 
vote  for  measures  which  he  firmly  believes  to  be 
pernicious  and  immoral.  B.  is  a  voter  in  Ohio  ; 
he  utterly  detests  the  whole  system  of  reconstruc- 
tion which  Congress  has  seen  fit  to  adopt,  and 
believes  the  tenets  of  the  opposite  party,  upon  all 
the  questions  relating  to  the  status  of  the  citizens 
who  had  seceded  from  the  Government,  to  be  the 
right  ones  ;  but  this  same  party  hints,  in  the  cam- 
paign of  his  State,  at  repudiation,  which  may 
adversely  affect  his  interests,  or  revolt  his  moral 
nature  ;  he  casts,  therefore,  his  vote  for  a  repre- 
sentative whose  course  in  Congress  he  deems 
dangerous  and  vicious,  in  order  that  the  candidate 
shall  not  prevail  who  is  pledged  to  a  course  which  he 
regards  as  still  more  dangerous.  Thus,  under  the 
majority  system,  the  voter  is  not  free  ;  his  vote,  or 
rather  the  possibility  of  making  it  effectual,  is  fettered 
with  a  condition  which  makes  the  act  of  voting 
cease  to  be  equivalent  to  an  expression  of  opinion. 
Naturally,  a  reform  which  proposed  to  take 
from  them  their  occupation  did  not  commend  itself 
to  the  professional  politicians.  Even  in  the  realm 
of  statesmanship  it  encountered  powerful  opposi- 
tion. Gladstone's  objection  to  it  was  :  "  We  do 
not  want  to  have  represented  immature,  particular 
shades  of  opinion."  Even  John  Bright  thought 
that  Hare's  scheme  was  calculated  to  put  in  the 
nominees  of  little  cliques  ;  and  it  was  the  verdict  of 
Disraeli  that  this  and  other  plans  of  cumulative 
voting,  having  for  their  object  the  representation 


ii2          LIFE  OF  SIMON  STERNE      CHAP. 

of  minorities,  were  admirable  schemes  for  bringing 
crotchety  men  into  the  House.  There  were  occa- 
sions when  the  advocates  of  proportional  repre- 
sentation seemed  on  the  point  of  scoring  a  triumph. 
One  of  these  was  when  the  Honourable  Charles  R. 
Buckalew,  of  Pennsylvania,  as  Chairman  of  the 
Select  Committee  on  Representative  Reform,  sub- 
mitted to  the  United  States  Senate  a  report  on  the 
subject  on  March  2,  1869,  accompanied  by  a  Bill 
applying  the  system  to  the  election  of  Members  of 
Congress.  Mr.  Buckalew  was  accustomed  to  call 
the  system  one  of  "  free  voting,"  as  opposed  to 
the  fettered  voting  which  Mr.  Sterne  had  so  vigor- 
ously denounced.  When  a  motion  to  provide  for 
the  election  of  Congressmen  by  the  cumulative 
vote  came  before  the  House  in  1870,  representa- 
tive reform  found  an  unexpected  ally  in  Mr.  James 
A.  Garfield,  who  delivered  this  remarkable  testi- 
mony to  its  necessity  : — 

When  I  was  first  elected  to  Congress,  in  the  fall  of 
1862,  the  State  of  Ohio  had  a  clear  Republican  majority 
of  about  25,000,  but  by  the  adjustment  and  distribu- 
tion of  political  power  in  the  State,  there  were  fourteen 
Democratic  representatives  upon  this  floor,  and  only  five 
Republicans.  The  State  that  cast  nearly  250,000  Re- 
publican votes  as  against  225,000  Democratic  votes  was 
represented  in  the  proportion  of  five  Republicans  and 
fourteen  Democrats.  In  the  next  Congress  there  was 
no  great  political  change  in  the  popular  vote  of  Ohio — a 
change  of  only  20,000 — but  the  result  was  that  seventeen 
Republican  members  were  sent  here  from  Ohio  and  only 
two  Democrats.  We  find  that  only  so  small  a  change 
as  20,000  changed  the  representatives  in  Congress  from 
fourteen  Democrats  and  five  Republicans  to  seventeen 


iv       RATIO  OF  REPRESENTATION     113 

Republicans  and  two  Democrats.  Now,  no  man,  what- 
ever his  politics,  can  justly  defend  a  system  that  may  in 
theory,  and  frequently  does  in  practice,  produce  such 
results  as  these.  .  .  . 

In  my  judgment  it  is  the  weak  point  in  the  theory 
of  representative  government  as  now  organised  and 
administered,  that  a  large  portion  of  the  people  are  per- 
manently disfranchised.  There  are  about  30,000  Demo- 
cratic votes  in  my  district,  and  they  have  been  voting  for 
the  last  forty  years  without  any  more  hope  of  gaining  a 
representative  on  this  floor  than  of  having  one  in  the 
Commons  of  Great  Britain. 

When  the  Proportional  Representation  Con- 
gress was  held  in  Chicago  in  1893,  an  address  to 
the  public  was  issued,  in  which  Mr.  Garfield's 
parable  was  taken  up  and  continued  to  date  as 
follows  : — 

Twenty-three  have  been  added  to  the  forty,  and  still 
the  Democrats  of  that  district  maintain  the  forlorn  hope. 
Iowa,  with  219,215  Republican  votes  and  201,923 
Democratic  votes  at  the  election  of  1892,  sent  ten  Re- 
publican Congressmen  and  one  Democrat  to  Washing- 
ton. Every  21,921  Republicans  of  that  State  has  a 
representative,  while  the  whole  201,923  Democrats  have 
but  one.  In  Kentucky  the  case  is  reversed.  The 
Democrats  have  a  Congressman  for  every  17,426  votes, 
while  the  Republicans  have  one  for  122,308.  In  Maine 
the  vote  was  65,637  Republicans  and  55,778  Democrats, 
but  the  Republicans  got  all  the  four  Congressmen.  In 
Maryland  the  vote  was  21,762  Republicans  and  113,931 
Democrats,  but  the  latter  got  the  six  Congressmen. 
The  Republicans  of  Texas  have  not  had  a  representative 
in  Congress  since  1882.  The  Democrats  of  Kansas  have 
not  had  a  representative  since  the  State  was  admitted 
to  the  Union,  though  they  have  polled  from  a  third 
to  two-fifths  of  the  vote  of  the  State  during  that  time. 

I 


1 14          LIFE  OF  SIMON  STERNE      CHAP. 

The  one  important  advance  which  had  been 
made  in  this  country  by  the  advocates  of  propor- 
tional representation  in  these  twenty-three  years 
was  the  adoption  in  1870  of  what  is  known  as  the 
Minority  Clause  in  the  Constitution  of  the  State  of 
Illinois.  This  clause  provides  that  "  each  voter 
may  cast  as  many  votes  for  one  candidate  as  there 
are  representatives  to  be  elected,  or  may  distribute 
the  same,  or  equal  parts  thereof,  among  the  candi- 
dates as  he  shall  see  fit,  and  the  candidates  highest 
in  votes  shall  be  declared  elected."  Under  this 
provision  the  districts  have  been  so  formed  that 
three  members  of  the  House  of  Representatives 
are  elected  from  each  district,  and  a  voter  may 
cast  three  votes  for  one  candidate,  or  one  and  a 
half  for  one  and  one  and  a  half  for  another,  or 
one  each  for  three  candidates.  The  consequence 
of  this  is  that  any  party  in  a  district  having  more 
than  a  fourth  of  the  votes,  and  uniting  them  on 
one  candidate,  may  elect  him  in  spite  of  anything 
that  the  majority  can  do.  As  a  matter  of  fact,  in 
nearly  all  the  districts  of  the  State  both  Republicans 
and  Democrats  elect  either  one  or  two  representa- 
tives. In  those  where  the  Democrats  are  in  the 
majority  they  usually  elect  two,  and  their  op- 
ponents one,  while  in  Republican  districts  the 
reverse  of  this  occurs.  It  happens  sometimes, 
though  rarely,  that  the  minority  party,  by  more 
skilful  organisation  and  management,  succeeds  in 
electing  two  members,  but  in  practice  the  system 
has  fully  justified  its  main  purpose  of  enabling  a 
number  of  voters  in  a  district,  considerably  less 
than  a  majority  or  a  plurality,  to  concentrate  their 


iv       RATIO  OF  REPRESENTATION     115 

votes  and  make  them  effective.  In  this  way  the 
Illinois  system  has  greatly  helped  independent 
voters  in  their  struggle  against  the  dictation  of  the 
professional  politicians. 

The  conceded  defects  of  the  system  are  that  it 
often  results  in  a  great  waste  of  votes,  because  voters 
cannot  tell  beforehand  whether  they  are  casting 
more  votes  for  a  favourite  candidate  than  he  will 
need  to  be  elected  ;  that  it  is  calculated  to  make  a 
nomination  equivalent  to  an  election,  because  each 
party  usually  nominates  only  as  many  candidates 
in  each  district  as  it  is  sure  of  electing,  and  thus 
the  selection  of  representatives  may  fall  into  the 
hands  of  the  political  managers  and  bosses  who 
control  the  primaries  ;  and,  finally,  that  if  a  notori- 
ously bad  nomination  is  made,  and  an  independent 
opponent  is  put  up,  he  is  more  apt  to  take  votes 
from  the  other  worthy  candidate  than  from  the 
disreputable  one.  The  Illinois  experiment  has  had 
at  least  the  merit  of  showing  that  to  give  the  voter 
the  required  freedom  of  choice,  larger  districts  than 
those  entitled  to  return  three  representatives  are 
necessary.  In  short,  the  real  objection  to  the 
Illinois  system  is,  that  the  principle  has  not  been 
carried  far  enough  in  that  State.  Considering, 
however,  the  paucity  of  the  results  of  the  move- 
ment throughout  the  country,  what  had  been 
accomplished  in  Illinois  furnished  ground  for 
legitimate  satisfaction. 

In  the  summer  of  1895  the  Proportional  Repre- 
sentation Society  of  New  York,  of  which  Mr. 
Sterne  was  president,  called  a  conference  to  meet 
in  Saratoga  to  take  stock  of  the  condition  and 


n6          LIFE  OF  SIMON  STERNE      CHAP. 

prospects  of  the  movement  in  this  and  other 
countries.  In  his  presidential  address,  Mr.  Sterne 
adverted  to  the  fact  that  it  was  twenty-five  years 
since  he  published  his  book  on  Representative 
Government;  thirty -six  years  since  Mr.  Hare 
published  his  work  on  the  Election  of  Representa- 
tives,  Parliamentary  and  Municipal;  thirty -four 
years  since  the  publication  of  John  Stuart  Mill's 
work  ;  twenty -eight  years  since  an  association, 
under  the  presidency  of  David  Dudley  Field,  of 
which  he  was  the  secretary,  knocked  at  the  door  ot 
the  then  sitting  Constitutional  Convention  of  New 
York  State  for  the  acceptance  of  their  ideas  ;  and 
yet,  while  there  have  been  here  and  there  sporadic 
attempts  made  for  the  adoption  of  Proportional 
Representation  in  some  of  the  States  of  the  Union, 
with  the  single  exception  of  the  experiment  in  the 
election  of  both  bodies  of  the  law-making  power 
of  the  State  of  Illinois,  no  great  practical  advance 
had  been  made  toward  incorporating  into  law  the 
principles  of  Proportional  Representation  in  the 
election  of  members  of  legislative  bodies,  and  thus 
abandoning  the  single  district  system.  Mr.  Sterne 
admitted  that  the  toiler  after  results,  however 
remote,  must  have  a  stout  heart  if  he  does  not 
feel  discouraged  when  a  retrospective  glance  shows 
such  a  meagre  catalogue  of  achievement  to  crown 
a  lifetime  of  effort,  aided  by  such  men  as  Mill, 
Hare,  Courtney,  Lubbock,  and  almost  all  the 
other  publicists  and  writers  in  England,  on  the 
Continent,  and  in  the  United  States. 

Regarding,    however,    the    progress    made    in 
countries    other    than    our    own,    he    found    that 


iv       RATIO  OF  REPRESENTATION     117 

decided  advances  had  been  made.  In  trying  to 
discover  the  special  causes  which  had  so  long 
delayed  securing  in  the  United  States  public  atten- 
tion for  the  far-reaching  and  beneficent  reforms 
which  are  embodied  in  an  adequate  system  of 
Proportional  Representation,  he  discerned  that 
other  more  absorbing  questions  had  engrossed 
public  attention.  First,  after  1865,  ^e  time  when 
the  underlying  principles  of  minority  or  Propor- 
tional Representation  became  known  to  students  of 
philosophical  politics  in  the  United  States,  there 
was  the  absorbing  question  of  reconstruction.  Next 
came  the  problem  of  dealing  with  the  emancipated 
negro,  and  then  that  of  reducing  the  burden  of 
the  national  debt  which  the  war  had  imposed  on 
the  people.  After  five  years  of  exclusive  attention 
to  these  practical  problems,  there  came  another 
ten  years  in  which  the  financial  question,  the  tariff 
question,  and  the  resumption  of  specie  payments 
were  the  paramount  political  issues.  From  1880 
to  1890  there  came  another  ten  years  in  which 
tariff  legislation  and  the  constantly  recurring  fight 
against  the  fallacies  of  the  greenbackers,  the  silver- 
ites,  and  the  numerous  adherents  of  dishonest 
finance  absorbed  the  attention  of  the  people  of  the 
United  States.  During  this  period  of  preoccupa- 
tion with  the  problems  of  practical  politics,  the 
one  great  triumph  scored  for  the  cause  of  pro- 
gressive reform  was  the  classification  of  the  public 
service  and  the  consequent  placing  of  the  minor 
public  offices  beyond  the  reach  of  the  spoilsmen. 
The  reform  of  the  ballot,  by  the  substitution  of 
the  Australian  form  for  that  in  general  use,  was 


n8          LIFE  OF  SIMON  STERNE      CHAP. 

another  measure  of  reform  which  was  simple  of 
explanation,  and  was  readily  accepted  and  accom- 
plished within  ten  years. 

Mr.  Sterne  was  constrained  to  admit  that,  in 
some  respects,  it  may  have  been  fortunate  that  no 
substantial  practical  progress  was  made  earlier 
in  the  history  of  the  movement  for  Proportional 
Representation.  He  conceded  that  those  who  had 
given  adhesion  to  the  soundness  of  the  principle 
in  its  earliest  development  were  prone  to  accept  it 
in  its  full  logical  significance  ;  and  that  if  they 
could  have  had  their  way  they  would  have  obliter- 
ated party  by  recognising  nothing  short  of  State 
lines  or  municipal  lines,  and  electing  national,  State, 
and  municipal  representatives  on  general  tickets 
and  by  the  preferential  vote.  Political  representa- 
tion would  thus  have  been  given  to  small  sections 
of  political  thought,  with  the  result  that  there 
might  have  been  injected  into  the  representative 
chamber  u  faddists "  instead  of  reasonable  men, 
and  the  practical  work  of  legislation  might  have 
been  rendered  impossible  in  the  presence  of  a  con- 
siderable number  of  impracticable  representatives 
with  vague  ideas.  He  had  become  convinced  that 
due  account  must  be  taken  of  the  fear  that  legislative 
bodies  might  be  impeded  by  fads  under  a  system 
of  minute  party  representation  ;  and  that,  further, 
the  fact  had  to  be  borne  in  mind  that  in  our  great 
cities  there  were  considerable  numbers  of  persons 
with  chaotic  and  vitiated  ideas  on  government,  on 
property,  and  on  human  rights  which  five  years  of 
residence  could  not  wholly  dissipate.  The  main 
justification  for  the  vast  amount  of  money  expended 


iv       RATIO  OF  REPRESENTATION      119 

upon  public  schools  is  that  they  take  the  children 
of  this  heterogeneous  mass  of  people,  put  them  into 
the  educational  hopper,  and  grind  them  out  to  be 
American  citizens.  He  had,  therefore,  been  com- 
pelled to  recognise  the  fact  that  until  we  have 
somewhat  more  thoroughly  amalgamated  into 
American  citizenship,  the  immigrants  untutored 
in  our  modes  of  thought,  the  thoroughgoing 
adoption  of  the  true  and  correct  principles  of 
representation  should  be  postponed  for  a  while. 
It  was  necessary  to  disarm  the  fear  of  many,  who 
otherwise  would  be  on  the  side  of  the  reform  ; 
that  its  application  would  give  too  much  strength 
to  separatist  interests  of  religion,  nationality,  race, 
or  sect.  Further,  however  beneficial  in  other 
respects  the  destruction  of  party  organisation,  as 
now  known,  would  be,  it  must  not  be  carried  so 
far  as  to  embarrass  legislation,  and  prevent — by 
the  obstruction  exercised  by  special  interests — 
the  common  good^  from  being  enacted  into  law. 
Having  due  regard  to  such  considerations,  Mr. 
Sterne  suggested  to  his  fellow  -  workers  at  the 
Saratoga  Conference  that  they  should,  for  the 
present,  be  content  to  confine  their  demand  for 
Proportional  Representation  to  cities  where  its 
application  would  rather  tend  to  the  better  repre- 
sentation of  the  best  elements  of  the  community, 
so  that  when  accepted  by  the  public  there  would 
be  no  reaction  arising  from  consequences  which 
can  be  foreseen,  and  therefore  guarded  against. 

This  train  of  reflection  was  doubtless  in  part 
prompted  by  the  lack  of  success  in  inducing  the 
State  Constitutional  Convention  of  1894  to  accept 


120          LIFE  OF  SIMON  STERNE      CHAP. 

the  plan  of  minority  representation  which  had  been 
offered  in  the  form  of  an  amendment  by  the  Hon. 
John  Bigelow.  Under  this  amendment  it  was  pro- 
posed to  divide  the  State  into  five  Senate  districts 
and  twenty  assembly  districts,  and  to  elect  therefrom 
one  hundred  and  forty  assembly-men  and  thirty- 
five  members  of  the  Senate  by  a  method  of  minority 
representation,  which  would  thus  enable  each  dis- 
trict to  elect  seven  senators  and  seven  assembly- 
men, giving  to  each  one-eighth  of  the  population, 
plus  one,  direct  representation.  In  the  effort  to 
secure  recognition  for  this  amendment,  Mr.  Sterne 
became  aware  of  the  causes  which  have  retarded  the 
extension  of  minority  representation  in  this  country. 
First  in  order  was  the  obvious  desire  on  the  part 
of  the  politicians  forming  the  majority  not  to 
divide  political  power  with  the  minority.  The, 
to  them  remote,  consideration  that  they  them- 
selves may  be  in  the  minority  within  a  year  or 
two  has  practically  little  or  no  weight  with  them. 
They  are  still  so  completely  in  the  thraldom  of  the 
spoils  system  of  politics,  which  teaches  them  that 
the  possession  of  political  power  enables  them  by 
means  of  the  patronage  it  brings  to  consolidate  and 
strengthen  that  power,  that  it  appears  to  them  that 
the  accidental  majority  of  the  moment  may  be 
made,  through  the  influence  of  patronage,  a  per- 
manent factor  of  substantial  political  domination. 
He  found  also  that  even  the  leaders  of  the  minority 
were  not  strenuous  for  the  adoption  of  a  system 
calculated  to  give  their  party  a  degree  of  political 
consideration  and  power  justly  proportioned  to  its 
numerical  strength.  In  the  first  place,  there  was 


iv       RATIO  OF  REPRESENTATION      121 

always  the  hope  that  the  minority  might  itself 
become  the  majority.  In  the  second  place,  there 
was  in  the  Constitutional  Convention  a  vitiating  and 
corrupting  theory  at  work  based  on  a  conviction 
on  the  part  of  the  minority  that  it  had  perpetual 
domination  and  control  over  that  small  section  of  the 
State  which  represents  more  than  one-half  of  the 
taxable  value  of  the  whole,  and  the  monopoly  of 
whose  government  was  vastly  more  profitable  to  it 
than  any  acquired  participation  in  the  government 
of  the  State  at  large.  The  representatives  of  the 
minority  did  not  propose,  by  any  system  of  pro- 
portional representation,  to  be  obliged  to  go  shares 
with  incongruous  and  disturbing  elements  in  regard 
to  this  small  section  which  they  regarded  as  strictly 
their  own  field  of  exploitation.  The  scheme  was 
opposed,  too,  by  a  number  of  pseudo-philosophical 
politicians  who  thought  they  saw  in  the  idea  some- 
thing un-American,  and  these  played  into  the 
hands  of  those  who  had  selfish  party  ends  in  view, 
and  who  naturally  desired  to  defeat  a  reform  which 
they  recognised  to  be  fraught  with  ruin  for  them- 
selves. Again,  the  adoption  of  the  principle  of 
minority  representation  would  have  meant  to  the 
party  which  dominated  the  Constitutional  Conven- 
tion an  interference  with  that  advantage  which  its 
members,  as  practical  politicians,  regarded  as  legiti- 
mately their  own — the  opportunity  to  use  their 
power  in  the  Constitutional  Convention  so  to 
gerrymander  the  State  as  to  make  one  party 
dominant  in  its  elective  force  even  if  numerically 
weaker,  and  to  maintain  in  control  of  the  State 
Government  the  rural  population,  no  matter  how 


122          LIFE  OF  SIMON  STERNE      CHAP. 

the    population    of  the    two    great    cities    at    the 
southernmost  part  of  the  State  might  increase. 

When  the  Greater  New  York  Commission  of 
1897  set  about  the  work  of  preparing  a  charter  for 
the  consolidated  cities,  Mr.  Sterne  and  his  associ- 
ates earnestly  undertook  the  task  of  trying  to  have 
incorporated  in  it  some  provisions  for  the  repre- 
sentation of  minorities.  A  similar  attempt  had 
been  made  twenty-five  years  before  in  the  charter 
prepared  by  Mr.  Sterne,  and  adopted  by  the  Com- 
mittee of  Seventy  in  1872,  and  submitted  by  them 
to  the  Legislature.  In  that  Act  there  was  incor- 
porated the  principle  of  minority  representation  in 
the  election  of  members  of  the  Board  of  Aldermen 
as  follows : — 

Sec.  i  (Art.  II.).  The  legislative  power  of  the  said 
corporation  shall  be  vested  in  a  Board  of  Aldermen,  ^which 
shall  consist  of  not  more  than  forty-five  members,  one- 
fifth  to  be  elected,  as  hereinafter  provided,  in  each  senate 
district  of  the  city  as  now  established  by  law. 

Sec.  4.  At  such  election  each  qualified  voter  in  each 
senate  district  may  give  one  written  or  printed  ballot 
with  the  indorsement  "  Aldermen,"  which  shall  contain  a 
list  of  not  more  than  nine  names.  The  voter  may  repeat 
on  such  list  the  same  name  nine  times,  or  may  make  such 
list  to  consist  of  nine  different  names,  or  may  repeat  any 
one  or  more  names  on  said  list  as  often  as  he  may  see  fit. 
After  the  closing  of  the  polls  on  the  day  of  election  the 
canvass  in  each  election  district  of  the  senate  district 
shall  be  completed  by  ascertaining,  assorting,  and  making 
returns  to  the  county  canvassers  of  the  number  of  votes 
given  for  each  candidate.  Any  ballot  containing  more 
than  nine  votes  shall  be  rejected.  From  the  returns  so 
made  the  county  canvassers  shall  determine  the  names  of 
the  nine  persons  having  the  largest  number  of  votes  in 


iv       RATIO  OF  REPRESENTATION     123 

each    senate    district,    and    they    shall    be   returned   as 
elected.  .  .  . 

This  secured  to  a  minority  of  one-ninth  or  more 
at  least  one  alderman,  and  of  course,  as  the  emanci- 
pation from  party  dictation  continued,  more  and 
more  representatives  of  the  minority  would  have 
been  elected.  The  Bill  passed  both  the  Senate  and 
Assembly,  but  was  vetoed  by  Governor  Hoffman, 
on  the  sole  ground  that  the  provision  securing 
minority  representation  was  repugnant  to  the  con- 
stitution, which  gave  to  every  male  voter  one  vote. 
Mr.  Sterne  did  not  regard  this  objection  as  well 
founded,  but  he  thought  it  a  new  reason  for 
making  a  strenuous  and  persistent  demand  on  the 
Constitutional  Convention  to  change  the  organic 
law  so  as  to  permit  of  minority  representation  to 
its  fullest  extent. 

In  addressing  the  Greater  New  York  Commis- 
sion, Mr.  Sterne  urged  that,  whatever  may  be 
thought  of  the  principle  of  giving  to  minorities 
representation  in  national  or  State  legislatures,  no 
reasonable  doubt  could  be  entertained  that  such 
representation  in  the  local  legislatures  of  our  cities 
would  be  of  great  value.  It  would  then  be  impos- 
sible for  a  careless  or  corrupt  constituency  of  some 
political  faction,  comprising  perhaps  not  much 
more  than  a  third  of  the  voting  population,  to 
elect  an  entire  municipal  legislature.  He  did  not 
argue  in  favour  of  any  particular  plan  for  securing 
minority  representation,  but  contented  himself  with 
the  suggestion  that  some  reasonable  and  consti- 
tutional method  of  giving  representation  to  the 
minority  in  the  municipal  assembly  should  be  in- 


i24          LIFE  OF  SIMON  STERNE       CHAP. 

corporated  in  the  charter,  and  that,  if  necessary, 
constitutional  changes  should  be  made  in  prepara- 
tion for  the  introduction  of  the  system.  It  was 
Mr.  Sterne's  own  judgment,  and  in  this  he  had  the 
support  of  constitutional  lawyers  of  the  highest 
repute,  that  there  was  nothing  in  a  system  of 
minority  representation  or  minority  voting  ob- 
noxious to  the  Constitution  of  the  State  of  New 
York.  The  conclusion  of  a  carefully  -  reasoned 
opinion  on  the  subject  by  Judge  John  F.  Dillon  is 
as  follows  : — 

A  change  so  radical  as  the  system  ot  minority  repre- 
sentation would  undoubtedly  meet  with  strong  opposition, 
and  the  objection  would  be  made  that  the  failure  of  the 
Constitution  to  provide  affirmatively  for  a  minority  system 
manifests  a  purpose  to  continue  in  its  substantial  features 
the  ordinary  system  of  representation  by  the  majority 
alone  as  distinct  from  a  system  which  permits  minority 
representation.  That  objection,  in  our  judgment,  would 
not  be  well  founded  provided  the  system  of  minority 
representation  adopted  recognised  the  right  of  all  electors 
to  vote  for  every  office  to  be  voted  for,  and  to  have  effect 
given  in  every  case  to  the  majority  vote.  Our  best 
judgment  is  that  an  Act  providing  for  minority  represen- 
tation, in  which  the  right  of  all  electors  to  vote  for  every 
elective  officer  is  provided  for,  and  which  gives  effect  to 
the  voice  of  the  majority,  would  not  violate  any  provision 
of  the  Constitution  of  the  State  of  New  York. 

On  the  statement,  of  which  the  above  is  a  part, 
being  presented  to  Judge  Benjamin  F.  Tracy,  of 
the  original  Charter  Commission,  he  stated  that  he 
concurred  in  the  views  which  it  expressed. 

The  Commission,  however,  failed  to  incorporate 
in  the  charter  any  provision  for  minority  repre- 


iv       RATIO  OF  REPRESENTATION      125 

sentation,  and  adhered  to  the  system  of  electing  all 
the  members  of  the  municipal  assembly  by  districts. 
Resolutions  proposed  by  Mr.  Sterne,  and  passed 
by  the  Committee  on  Legislation  of  the  City  Club, 
were  offered  in  protest,  on  the  ground  that  experi- 
ence had  demonstrated  that  a  municipal  legislature, 
composed  entirely  of  men  elected  from  small  con- 
stituencies, would  tend  to  represent  not  the  best 
citizenship  of  the  community  but  the  petty  politics 
of  localities.  If  the  local  legislature  is  to  have 
considerable  powers,  it  becomes  important  so  to 
dignify  membership  in  it  that  men  of  character 
and  ability  will  be  induced,  as  they  have  been  in 
England,  to  become  members.  The  election  of  at 
least  some  of  the  members  on  a  general  ticket  from 
the  whole  city  would  contribute  to  this  end,  and 
would  also  make  the  political  parties  less  likely  to 
nominate  notably  bad  men  than  under  the  district 
system.  Tammany  Hall  has  never  ventured  to 
nominate  candidates  so  ignorant  and  corrupt  for 
executive  offices  as  many  of  its  candidates  for  the 
Board  of  Aldermen. 

The  results  of  the  City  election  of  1897  fully 
sustained  the  soundness  of  the  position  taken  by 
Mr.  Sterne.  As  he  afterwards  showed,  in  apply- 
ing to  the  Charter  Revision  Commission  of  1900 
to  give  some  recognition  to  the  principle  of  pro- 
portional representation,  Tammany  and  the  Demo- 
crats elected  twenty -three  of  the  twenty -eight 
members  of  the  municipal  council,  or  82  per  cent 
of  the  entire  number  ;  and  the  Citizens'  Union 
and  Republicans  together,  with  48  per  cent  of  the 
voters,  elected  only  five,  or  18  per  cent,  of  the 


126          LIFE  OF  SIMON  STERNE      CHAP. 

council  men.  In  the  argument  submitted  to  this 
Commission  Mr.  Sterne  declared  that,  while  the 
system  of  proportional  representation,  if  logically 
carried  out  within  New  York,  would  totally  abolish 
the  districts,  yet  in  recognition  of  the  fact  that 
there  are  separable  interests  as  represented  by 
certain  constituencies  which  were  welded  together 
by  the  charter  forming  the  greater  city,  he  would 
propose  to  make  three  large  divisions — one  repre- 
senting the  boroughs  of  Manhattan  and  the  Bronx, 
one  representing  the  borough  of  Brooklyn,  and  the 
other  the  borough  of  Richmond — and  to  divide 
these  into  equal  constituencies,  so  that  on  the 
whole  there  shall  be,  as  near  as  possible,  ten  great 
subdivisions  electing  nine  from  each  of  these  sub- 
divisions, and  giving  each  one -ninth  quota  of 
voters  within  such  district  the  power  to  elect  a 
representative.  This  would  give  a  fair  representa- 
tion to  all  parties,  and  in  large  parties  of  voters 
freedom  of  choice  within  party  lines. 

Mr.  Sterne  directed  attention  to  this  peculiar 
phase  of  the  political  situation  in  New  York  that 
there  are  usually  five  or  six  separate  parties  or 
groups  of  voters,  each  with  its  separate  ticket. 
There  is  no  one  of  these  groups  which  generally 
numbers  a  majority  of  the  voters.  They  are  all 
minority  groups,  but  Tammany  being  the  largest 
minority  elects  its  candidates  by  a  plurality.  The 
only  way  in  which  Tammany  can  be  defeated  is  by 
a  fusion  of  the  opposing  parties.  Now,  fusion  is 
usually  difficult,  and  sometimes  impossible.  Against 
the  solid  constituency  of  Tammany  Hall,  held 
together  by  many  ties  of  self-interest,  there  are 


iv       RATIO  OF  REPRESENTATION     127 

other  groups  of  voters,  with  more  or  less  ideal  plat- 
forms and  programmes  of  reform,  united  by  no 
predominating  self-interest,  and  indisposed  to  yield 
what  each  considers  an  important  plank  in  its  plat- 
form for  the  sake  of  fusion  upon  a  single  candidate. 
Yet  all  of  these  parties  and  groups  are  at  one  in 
their  opposition  to  Tammany,  and  if  they  all  could 
elect  each  its  own  leading  candidates  without  fusion, 
it  would  be  found  after  election  that  they  would 
eagerly  unite  on  many  lines  of  resistance  to  the 
syndicate  of  politicians  in  control  of  Tammany. 
Proportional  Representation  is  exactly  suited  to 
this  plan  of  action.  It  enables  each  party  or  group 
to  put  up  its  own  ticket  without  fusion,  and  to 
elect  just  as  many  candidates  as  those  to  which  its 
numbers  entitle  it.  Altogether  this  means,  in  fact, 
a  majority  of  the  council.  Indeed,  it  may  be 
expected  that  with  the  increased  opportunities  for 
electing  independent  tickets  the  proportion  of  anti- 
Tammany  voters  would  be  greatly  increased. 

Speaking  as  President  of  the  Proportional 
Representation  Society,  and  for  a  Committee  of 
that  Society  appointed  to  present  their  views  to 
the  Charter  Revision  Commission,  Mr.  Sterne 
declared  it  to  be  the  conviction  of  himself  and  his 
associates  that  Proportional  Representation  is  the 
next  step  which  should  follow  in  the  line  of  policy 
along  which  the  city  of  New  York,  under  the 
direction  of  the  State  Legislature,  has  been  moving 
during  the  last  thirty  years.  The  plan  which  they 
submitted  was  based  upon  a  frank  recognition  of 
political  parties,  but,  in  the  earlier  days,  neither 
the  Constitution  nor  the  laws  recognised  the  exist- 


128          LIFE  OF  SIMON  STERNE      CHAP. 

ence  of  parties.  A  voter  was  supposed  to  vote 
not  for  a  party  but  a  candidate  on  his  personal 
merits,  and  the  actual  dominance  of  party  was  not 
recognised  by  the  Legislature  until  the  year  1870, 
when  the  bi-partisan  police  and  election  boards  for 
New  York  and  Brooklyn  were  created.  In  1880 
the  Boards  of  Registration  were  also  made  bi- 
partisan ;  in  1 8  8  2  the  Legislature,  for  the  first 
time,  enacted  a  law  protecting  party  primaries.  In 
1891  a  long  step  in  advance  was  taken  when  the 
Legislature  adopted  the  present  ballot  arranged  in 
party  columns.  Here,  for  the  first  time,  it  was 
legally  recognised  that  the  voter  selects  first  his 
party  and  then  the  candidates  within  that  party. 
That  law  gives  the  first  legal  definition  of  a  party 
and  authorises  nominations  made  by  the  party 
authorities.  Finally,  in  1897,  the  last  and  most 
radical  step  was  taken,  in  the  Primary  Election 
Law  of  that  year,  when  the  State  completely 
legalised  the  political  parties  as  agencies  for  nominat- 
ing and  electing  the  officers  of  Government,  and 
proceeded  to  frame  a  careful  definition  of  a  party, 
defining  the  qualifications  for  membership  and 
providing  State  officials  for  conducting  the  party 
elections  and  certifying  the  result.  Proportional 
Representation  is  apparently  the  next  step  in  the 
same  direction.  The  plan  proposed  by  Mr.  Sterne 
and  his  associates  is  fitted  to  the  party  column 
ballot.  It  is  based  on  the  acknowledged  legal 
status  of  the  parties.  But  it  is  a  correction  of  a 
flagrant,  inconsistency  which  comes  into  view  with 
this  new  importance  of  parties,  namely,  that  the 
voters  do  not  all  belong  to  one  party,  and  yet  only 


iv       RATIO  OF  REPRESENTATION     129 

those  who  belong  to  the  largest  party  are  permitted 
to  govern  the  city.  They  proposed  that  the  legis- 
lative branch  of  the  City  Government  should  be 
a  thoroughly  representative  body  ;  that  it  should 
include  the  recognised  leaders  of  all  parties  in  the 
same  numerical  proportion  as  the  party  voters,  and 
should  thus  be  a  reflection  of  the  opinions  of  the 
constituency  which  elects  it.  And  since  the  people 
choose  necessarily  to  act  through  political  parties, 
and  since  those  parties  are  now  the  legal  organs 
for  such  action,  it  follows  that  the  next  step  is 
a  measure  like  proportional  representation  which 
will  secure  justice  to  every  party  so  long  as  it  is 
numerous  enough  to  form  a  substantial  quota  of 
the  qualified  voters  of  any  district.  Proportional 
Representation  in  this  way  would  afford  a  recon- 
ciliation between  those  who  would  concentrate  all 
power  in  the  hands  of  a  dominant  party  and  those 
who  would  eliminate  party. 

Mr.  Sterne  had  no  illusions  as  to  the  effect  of 
this  or  other  measures  of  reform  in  effecting  any 
radical  change  on  the  character  and  purposes  of  the 
mass  of  humanity.  What  he  did  expect  is  very 
fairly  outlined  in  the  following  extract  from  an 
address  delivered  two  or  three  years  before  his 
death,  and  which,  incidentally,  furnishes  an  interest- 
ing revelation  of  his  mature  opinions  on  the  subjects 
in  which  he  was  most  deeply  interested  : — 

When  one  arrives  at  my  years,  he  feels  how  dangerous 
it  is  to  prognosticate  the  effects  of  any  particular  reforma- 
tory measure  on  the  body  politic.  Many  of  our  citizens 
expected  great  results  from  the  Australian  system  of 
voting.  It  is  true  that  in  its  entirety  it  has  not  been 

K 


130          LIFE  OF  SIMON  STERNE      CHAP. 

established,  but  at  all  events  greater  secrecy  has  been  accom- 
plished, and  it  was  supposed  that  a  large  number  of  people 
who  were  willing  to  follow  the  machine  so  long  as  it  was 
known  how  they  would  vote,  would,  on  complete  emanci- 
pation by  the  secrecy  of  their  vote,  abandon  it  and  come 
over  to  the  side  of  the  good  people.  We  all  of  us  have 
experienced  very  serious  disappointment  that  such  has 
not  been  the  result.  Secrecy  of  voting  enables  almost  as 
many  people  who,  under  the  eye  of  popular  censure  are 
deterred  from  voting  on  the  wrong  side,  to  exercise  their 
selfish  small  interests  when  protected  from  the  eye,  as 
would  quite  outweigh  the  number  of  people  who,  under 
the  domination  of  fear  and  possibly  bribery,  exercise  their 
vote  in  conformity  with  the  wishes  of  the  machine. 
Many  of  you,  and  I  may  say  of  us,  anticipated  great 
things  from  the  adoption  of  civil  service  reform.  Civil 
service  reform  has  made  great  headway  within  the  last 
fifteen  or  twenty  years,  but  the  institutions  of  America 
remain  pretty  much  as  they  were  then,  notwithstanding 
such  reform.  Although  some  little  progress  has  been 
made,  it  has  been  so  slow  and  intermittent  a  one  that  its 
effect  on  the  general  tone  of  politics  has  been  so  slight, 
that  none  of  us  feel  as  though  we  were  in  a  strange 
country  when  we  look  back  on  what  was  and  see  what  is. 
Hence  I  do  not  venture  upon  any  promise  of  supreme 
good  if  minority  representation  were  once  adopted  ;  all 
that  I  can  promise  is,  that  the  balance  of  good  will  be  in 
its  favour.  What  I  know  is  this,  that  wherever  adopted 
— in  Denmark,  in  Geneva,  in  Neuchatel,  in  France,  and 
in  Illinois,  in  a  tentative  and  half-hearted  sort  of  way — it 
has  never  been  abandoned  ;  that  if  adopted  with  us,  it 
will,  in  the  first  place,  make  public  affairs,  or  in  other 
words,  a  political  career,  a  reasonably  certain  career  for 
the  bold,  upright,  honest,  right-thinking  man  to  enter 
into.  It  would  create  freedom  from  party  ties,  and  make 
success  possible  notwithstanding  such  freedom  ;  it  would 
destroy  the  balance  of  power  parties  and  the  corrupting 
influence  that  they  exercise ;  it  would  represent,  for  weal 


iv        RATIO  OF  REPRESENTATION     131 

or  woe,  the  community  just  as  it  stands,  and  would  make 
the  representative  body  a  reduced  photograph  of  the  whole 
body  politic. 

tinder  these  circumstances  I  concede  that  the  vilest 
and  the  basest  in  the  community  could  send  their  repre- 
sentative, but  he  would  be  known  as  the  thieves'  repre- 
sentative, and  there  would  be  no  disguise  as  to  his 
position,  and  he  could  not  by  any  possibility  affect  the 
rest.  He  would  probably  be  an  outspoken  advocate  of 
all  the  sinister  interests  in  society  without  disguise,  which 
is  very  much  better  than  the  disguised  representatives 
that  we  have  now,  many  who  are  sent  by  constituencies 
that  are  vile,  but  in  consequence  of  their  being  mixed  up 
with  the  rest  of  the  community  the  true  character  of 
their  representation  is  not  known. 

It  would  be  a  return  in  a  more  liberal  form  to  the 
old  class  representation,  where  each  particular  important 
section  in  the  community,  the  merchants'  guilds  and  the 
trades  guilds,  sent  their  representatives  to  the  common 
council  chamber,  where  they  met  to  discuss  their  respective 
interests,  and  each  man  represented  precisely  what  he 
claimed  to  represent,  a  special  class  interest,  and  from  the 
whole  the  general  public  will  was  furthered  and  welded 
together.  And  it  certainly  would  bring  the  foremost 
minds,  the  best  purposes,  and  the  highest  intellects  of  the 
country  once  more  into  political  activity,  by  enabling 
them  to  achieve  success  in  a  just  and  proportional  strength 
to  the  effort  put  forth,  and  not  setting  before  them  the 
seemingly  hopeless  task  of  persuading  the  majority  of 
their  fellow-men  of  the  usefulness  of  their  purposes,  and 
the  beneficial  results  of  their  aims,  when  those  aims  seem 
far  distant,  and  those  purposes  are  wofully  misunderstood 
by  people  who  want  direct  benefits  from  the  immediate 
dispensation  of  patronage  by  the  public  powers  and  food 
from  the  public  crib. 

Surely  it  is  not  unreasonable  to  expect  that  when  each 
vote  will  tell  to  some  purpose,  the  men  who  now,  by 
reason  of  the  hopelessness  of  the  struggle,  abstain  from 


1 32          LIFE  OF  SIMON  STERNE      CHAP. 

political  activity,  will  return  to  it.  There  will  then  be 
no  majorities  which  are  overwhelming,  and  no  despair- 
ing minorities.  Then  we  shall  have  for  the  first  time 
truly  representative  bodies.  The  permanent  machinery  of 
party  will  be  unnecessary,  because  a  temporary  coalition 
will  produce  representation,  and  the  majority  of  the 
representatives  will  represent  a  corresponding  majority  of 
constituencies,  only  that  the  particles,  no  longer  under 
coercion  to  fly  together  mechanically,  will  seek  their 
natural  affinities,  and  different  groups  will  form  them- 
selves, and  the  majority  will  therefore  not  be  a  haphazard 
mechanical  combination  held  together  by  the  whip  of  the 
boss  and  fearing  rebellion  against  the  boss  lest  the  party 
may  be  disintegrated  and  destroyed.  There  will  be 
a  general  and  quick  representation  of  every  new  and 
important  political  idea,  which  will  be  ventilated  and 
answered.  If,  then,  representative  institutions  fail  to 
secure  good  government,  it  is  because  mankind  is  not  fit 
for  it  and  there  is  an  inherent  defect  in  the  organisation. 
Under  the  present  system  our  legislative  machinery  has 
so  utterly  broken  down  that  there  is  not  a  conservative 
interest  in  the  country  that  does  not  look  to  the  meeting 
of  legislative  bodies  with  apprehension  and  hail  their 
adjournment  with  feelings  of  relief  from  a  constant 
menace  ;  and  that  arises  from  a  consciousness  dimly 
expressed  but  genuinely  experienced  that  the  successive 
Congresses  and  annual  Legislatures  do  not  represent  the 
people  but  coteries  of  politicians,  who  interpose  themselves 
between  the  people  and  the  voters  and  keep  up  a  govern- 
ment in  the  name  of  the  people,  just  as  the  Roman 
emperors  long  after  every  vestige  of  liberty  departed  from 
the  Roman  Empire  promulgated  their  laws  in  the  name 
of  the  people  of  Rome.  We  have  thus  far  in  our  efforts 
at  reform  treated  symptoms  and  not  the  disease  itself. 
We  tried  to  escape  from  the  consequences  of  evil  legis- 
lation by  suggesting  bi-annual  legislatures,  on  the  theory 
that,  inasmuch  as  the  meeting  of  the  legislatures  is  an 
evil,  having  it  sit  but  half  the  time  lessens  the  evil.  Let 


iv       RATIO  OF  REPRESENTATION     133 

us  reform  our  legislative  body  by  making  it  truly  repre- 
sentative ;  reform  the  methods  of  legislation  (which,  how- 
ever, is  the  subject  of  another  address),  and  make  our 
representatives  truly  representative,  and  we  may  hope  for 
a  change  in  the  spirit  of  the  people  through  the  freedom 
of  choice  given  to  them,  and  an  entire  change  in  the 
character  and  capacity  of  the  members  of  our  legislative 
bodies. 


CHAPTER   V 

REFORM    OF    THE    METHODS    OF    LEGISLATION 

As  indicated  in  the  address  quoted  at  the  end  of 
last  chapter,  Mr.  Sterne  regarded  the  reform  of 
the  methods  of  legislation  as  not  less  necessary 
than  a  change  in  the  system  of  electing  legislators. 
In  the  notable  address  on  Representative  Govern- 
ment, delivered  in  1869,  he  declared  that  the  right 
to  pass  what  are  called  private  Bills  should  by  one 
blow  be  entirely  and  completely  abrogated.  "  If 
any  person  is  in  a  position  to  require  relief  for 
which  our  laws  are  inadequate,  and  the  legislative 
power  must  be  called  into  play,  then  pass  some 
general  law  which  shall  not  only  relieve  the  person 
aggrieved,  but  all  others  who  may  be  similarly 
situated."  He  was  deeply  impressed  by  a  remark 
made  by  Chief-Justice  Church  in  1875,  *n  deliver- 
ing the  opinion  of  the  New  York  Court  of  Appeals, 
in  the  matter  of  Kiernan,  to  the  effect  that  it  was 
not  safe  to  speak  confidently  of  the  exact  condition 
of  the  law  in  respect  to  public  improvements  in 
the  cities  of  New  York  and  Brooklyn,  because  the 
enactments  in  reference  thereto  had  been  modified, 
superseded,  and  repealed  so  often  and  to  such  an 

134 


CH.V     REFORM  OF  LEGISLATION        135 

extent  that  it  was  difficult  to  ascertain  just  what 
statutes  were  in  force  at  any  particular  time.  This 
statement  prompted  Mr.  Sterne  to  make  a  detailed 
study  of  the  methods  of  legislation,  and  the  im- 
perfections of  these  appeared  to  him  so  glaring 
and  so  numerous  that  for  twenty-five  years  he 
missed  no  opportunity  of  directing  public  attention 
to  their  causes  and  remedy. 

In  an  address  before  the  New  York  Municipal 
Society,  on  January  6,  1879,  he  made  the  first 
public  statement  of  the  convictions  he  had  reached 
on  this  subject.  He  began  by  contrasting  the 
conditions  which  existed  when  the  Government  of 
the  State  of  New  York  was  organised  and  a  general 
grant  of  legislative  power  conferred  upon  the  Legis- 
lature, with  the  conditions  which  existed  at  the 
time  of  his  discourse.  Forty  pages  of  general  and 
special  statutory  enactments  recorded  during  the 
early  years  of  the  independence  of  the  State  the 
whole  of  the  legislative  work  of  a  session  ;  and 
even  the  active  lawyer,  leader  of  the  Bar  though  he 
may  have  been,  the  leading  merchant  or  the  large 
landed  proprietor,  could  spare  time  to  go  to  Albany 
as  a  representative  to  supply  the  legislative  wants 
of  a  homogeneous,  contented,  and  simplicity-loving 
people.  Mr.  Sterne  pointed  out  that  the  methods 
which  were  considered  sufficient  for  the  poor, 
simple,  agricultural  population  in  1789,  were,  with 
very  slight  modifications,  the  methods  of  ninety 
years  later.  No  distinction  is  made  between  public 
and  private  Bills  ;  there  is  no  ministerial  or  party 
responsibility  in  reference  to  public  measures ; 
private  and  local  Bills  are  not  subjected  to  any 


136          LIFE  OF  SIMON  STERNE      CHAP. 

scrutiny,  to  any  trial,  to  any  safeguard,  as  to 
their  passage,  which  distinguishes  them  wholly 
from  the  public  legislation,  and  which  would  afford 
reasonable  guarantees  that  the  rights  of  individuals 
have  been  protected  in  the  drafting  of  the  Bill 
before  its  introduction  and  the  amending  of  the 
Bill  during  its  passage,  and  that  such  private, 
special,  and  local  legislation  is  not  in  conflict  with 
the  context  and  purposes  of  the  general  law.  He 
argued,  with  obvious  force,  that  when  we  take 
into  consideration  the  fact  that  modern  society 
has  been  reorganised  within  these  ninety  years, 
that  the  growth  of  wealth  has  advanced  at  a  rate 
fiftyfold  as  compared  to  its  growth  anterior  to 
this  century,  while  population  has  shown  an  increase 
fourfold  greater  than  that  of  any  previous  period 
of  similar  length,  and  corporations  have  multiplied 
a  hundredfold  within  the  same  time,  that  all  this 
brings  upon  the  legislative  body  a  pressure  for 
special  rights  and  a  corresponding  disregard  of 
general  rights  previously  without  example.  Under 
such  circumstances,  it  seemed  quite  inexplicable 
why  that  differentiation  which  has  taken  place  in 
every  well -constituted  factory,  in  every  well- 
constituted  department  of  human  industry  of  any 
description,  has  not  taken  place  in  our  legislation, 
and  our  community  has  not  deemed  it  necessary 
to  erect  bulwarks  against  this  pressure  of  special 
interests. 

Reviewing  the  conditions  which  went  to  the 
making  of  a  legislative  session,  Mr.  Sterne  pointed 
out  that  the  members  of  the  Senate  and  of  the 
House  arrive  at  the  State  Capitol  respectively 


v  REFORM  OF  LEGISLATION        137 

pledged  to  their  parties  on  party  measures,  but 
free  upon  other  subjects  to  constitute  our  legislature 
for  the  year.  The  only  contest  at  the  beginning 
of  the  session  is  the  election  of  a  Speaker  with 
a  view  to  the  formation  of  commitees,  and  the 
Speaker,  although  he  has  the  important  function  of 
appointing  committees,  and  can  manipulate  their 
membership  as  he  pleases  in  special  interests,  has 
no  responsibility  in  the  way  of  suggesting,  framing, 
shaping,  or  conducting  the  legislative  course  of  the 
session.  If  bad  laws  are  passed,  he  is  held  blame- 
less, if  good  laws  fail  in  their  passage,  unless 
through  the  direct  interference  of  his  ruling,  no 
responsibility  attaches  to  him.  When  the  com- 
mittees are  organised,  any  member  can  introduce 
Bills,  and  that  right  is  practically  without  limit, 
until  toward  the  close  of  the  session.  Whatever 
the  nature  of  the  Bill  may  be,  whether  it  be  to 
frame  a  new  code  of  procedure  for  the  State,  a 
new  system  of  commercial  law,  a  village  charter, 
or  an  act  to  secure  the  better  application  of  funds 
to  relieve  the  poor  in  some  remote  town,  it  takes 
the  same  course  ;  it  is  referred  to  what  is  supposed 
to  be  its  appropriate  committee,  is  scarcely  ever 
drafted  at  the  Capitol,  is  suggested  as  a  general 
rule  by  some  special  or  private  interest  behind  it, 
and  its  success  depends  mainly  upon  the  pertinacity 
and^  skill  with  which  this  interest  or  its  lobby  sees 
fit  to  push  it. 

Under  such  a  condition  of  legislation,  the 
cynical  statement  that  skilled  talent  is  necessary 
for  the  purpose  of  securing  the  passage  of  a  Bill, 
and  that  it  is  idle  to  expect  a  Bill  to  be  turned  out 


138          LIFE  OF  SIMON  STERNE      CHAP. 

as  law  unless  such  skilled  talent  is  employed, 
contains  a  considerable  amount  of  truth.  Unfor- 
tunately, the  skill  which  is  invoked  is  generally 
unscrupulous  in  its  character,  instead  of  being  that 
of  a  body  of  men  whose  duty  it  is  to  supervise  and 
become  responsible  for  the  legislation  of  a  given 
session.  The  members  of  the  Legislature,  when 
they  convene,  expect  Bills  to  drop  into  their  hands 
upon  which  they  are  to  act,  and  there  are  always 
private  interests  throughout  the  State  sufficiently 
alert  and  active  in  asking  for  legislation  from  year 
to  year  to  occupy  most  of  the  session,  whatever 
may  be  its  term.  A  Bill  that  happens  to  be  the 
order  of  the  day  occupies  it  to  the  exclusion  of 
more  important  measures,  and  it  seems  to  be 
nobody's  business  to  see  to  it  that  such  a  Bill,  if 
it  is  unimportant,  be  postponed  until  the  important 
Bills  of  the  session  are  disposed  of.  The  com- 
mittees meet  at  hours  when  members  usually 
consider  it  a  hardship  to  be  compelled  to  attend, 
and  those  composing  them  have  neither  the  sense 
of  responsibility  attaching  to  a  judicial  inquiry,  nor 
do  they  feel  themselves  in  any  degree  occupying 
the  position  of  judges.  No  formality  is  observed, 
no  decorum,  no  order  or  method  of  inquiry.  The 
Railway  Committee  will  hear  an  argument  upon 
the  same  day  upon  a  suggestion  to  change  the 
general  body  of  the  railway  law,  and  upon  a  pro- 
posal to  compel  milk  trains  on  the  Harlem  Rail- 
road to  run  at  a  certain  rate  of  freight.  The 
Committee  on  Cities  will  hear  an  argument  upon 
the  question  of  changing  the  organic  law  of  the 
city  of  New  York  immediately  after  or  before  an 


v  REFORM  OF  LEGISLATION       139 

application  to  alter  the  line  of  the  opening  of  a 
street  in  the  city  of  Hudson.  Local,  special,  and 
private  laws  jostle  public  laws,  and  the  order  in 
which  they  are  heard,  and  the  time  given  to  them 
respectively,  is  very  much  dependent  upon  the 
pressure  which  is  brought  to  bear  upon  the  in- 
dividual members  or  the  clerk.  And  when  at  the 
end  of  a  session  a  volume  of  laws  is  brought  forth, 
two-fifths  of  which  are  mere  administrative  regula- 
tions, one-fifth  private  acts,  and  one-fifth  local 
laws,  and  only  the  last  fifth  laws  of  general  public 
utility,  and  the  whole  incongruous,  inharmonious, 
and  adding  additional  confusion  to  an  already 
confused  mass  of  legislation,  no  one  member  nor 
any  officer  or  officers  of  the  Legislature  or  State 
executive  Government  may  be  said  to  be  respons- 
ible for  this  evil.  The  committees  work  independ- 
ently of  each  other ;  there  is  no  drafting  committee  ; 
there  are  no  examiners  ;  there  is  no  council  of 
revision  ;  there  is  nothing,  in  short,  to  secure  order 
except  the  necessarily  hurried  and  perfunctory 
examination  that  can  be  given  in  the  Executive 
Chamber,  the  incumbent  of  which  at  best  can  only 
prevent  by  his  veto  the  most  outrageously  uncon- 
stitutional Bills  from  becoming  operative. 

In  setting  about  a  reform  of  the  legislative 
methods  thus  outlined,  Mr.  Sterne  was  acutely 
conscious  of  the  fact  that  in  the  effort  to  cure 
existing  abuses,  new  ones  might  be  created.  He 
recalled  that  when  the  pressure  of  private  interests 
had  created  a  lobby  so  powerful  that  our  legislative 
methods  had  become  a  scandal  and  disgrace,  it  was 
thought  advisable  to  erect  a  barrier  by  limiting  the 


140          LIFE  OF  SIMON  STERNE      CHAP. 

powers  of  the  Legislature  in  certain  directions,  and 
particularly  those  in  which  the  lobby  influence  had 
been  most  perniciously  exercised.  But  the  pro- 
visions designed  by  the  Constitutional  Commission 
of  1872  against  private,  local,  and  special  legislation 
had  been  circumvented  by  the  practice  of  making 
special  grants  under  the  cover  of  general  legislation. 
It  only  required  a  few  years  of  the  operation  of 
the  constitutional  amendments,  which  went  into 
effect  in  1875,  *°  demonstrate  that  the  great 
danger  of  such  limitations  of  legislative  power  lay  in 
the  fact  that  wherever  the  restrictions  were  clearly 
applicable,  the  special  private  interest  which  felt 
itself  hampered  by  the  existence  of  the  constitu- 
tional limitation  would  strain  every  point  to  have 
the  general  law  so  amended  as  to  meet  its  special 
case.  Hence  the  little  harmonious  legislation  that 
was  left  was  thrown  into  the  arena  of  private 
interests  to  be  hacked  at  and  torn  to  pieces  as  they 
might  dictate. 

Mr.  Sterne  proposed  to  go  to  the  root  of  the 
evil,  and  give  form  and  method  to  our  legislation 
by  distinguishing  clearly  between  matters  of  public 
and  private  concern  ;  by  providing  that  all  private 
or  local  Bills  which  it  is  desired  that  the  incoming 
Legislature  shall  act  upon  shall  be  filed  with  the 
Secretary  of  State  sixty  days  before  the  opening  of 
the  legislative  session  ;  and  that  no  private  or  local 
Bills  should  be  introduced  during  the  session  unless 
so  filed,  except  with  the  consent  of  the  Governor 
and  two-thirds  of  both  Houses  entered  upon  the 
journals  by  ayes  and  nays.  After  the  Bill  has  been 
filed,  its  object  and  a  synopsis  of  its  contents 


REFORM  OF  LEGISLATION        14  1 


should,  at  the  expense  of  those  interested,  be 
advertised  in  the  State  paper  before  the  opening 
of  the  Legislature,  and  if  it  affects  private  interests 
by  the  proposed  occupation  of  or  interference  with 
the  surface  of  any  street  or  highway,  or  in  any  way 
involves  the  right  of  eminent  domain,  owners  of 
property  along  the  line  of  the  street  or  highway, 
or  proposed  improvement,  should  be  individually 
notified  before  the  opening  of  the  session.  Objec- 
tions to  Bills  should  thereupon  be  filed  within  the 
first  ten  days  of  the  session,  and  after  they  have 
elapsed,  these  several  private  Bills  should  be  referred 
to  joint  special  committees  of  members  of  the 
Legislature,  and  experts  to  be  appointed  by  the 
Governor,  who  should  sit  as  though  they  were 
courts  of  justice,  and  after  a  proceeding  analogous 
to  a  trial,  report  from  time  to  time  the  Bills  with 
their  amendments  to  the  Legislature.  The  Bills 
and  these  objections  thereto,  all  duly  filed,  should 
be  considered  in  the  same  light  as  the  framing  of 
an  issue  at  law.  A  calendar  should  be  made  for 
the  Bills  in  their  respective  committees,  and  notice 
of  the  time  and  place  of  trial  and  hearing  given  to 
the  parties  interested.  Then  at  the  trial  of  these 
issues  all  interests  could  be  heard  through  counsel, 
testimony  could  be  taken,  and  the  question  whether 
the  Bill  should  become  a  law  would  partake  of  the 
nature  of  a  judicial  inquiry  into  rights,  instead  of 
a  mere  legislative  inquiry  for  the  information  of 
the  legislators. 

To  the  objection  that  this  was  investing  legisla- 
tion with  the  character  of  judicial  procedure,  Mr. 
Sterne  replied  by  the  statement  that  private  and 


i42          LIFE  OF  SIMON  STERNE      CHAP. 

local  legislation,  according  to  the  principles  of  the 
Roman  law  and  the  fundamental  principles  of  the 
English  law  as  well,  is  not,  strictly  speaking, 
legislation  at  all,  but  partakes  of  the  nature  of  a 
grant  by  a  legislative  court  of  the  same  validity  as 
a  judicial  decree,  allowing  or  establishing  special 
exemptions,  privileges,  or  monopolies,  in  derogation 
or  in  alteration  of  the  common  right  which  is 
established  only  by  general  law.  It  was  pointed 
out  that  the  English  Court  of  Chancery  felt  itself  at 
liberty  to  enjoin  a  party  from  promoting  a  private 
Bill  before  Parliament  when  such  a  Bill  would  be 
in  violation  of  a  contract,  and  when  it  was  sug- 
gested, on  argument,  that  such  an  injunction  was 
an  interference  with  the  constitutional  right  of 
petition,  the  answer  was  made  by  the  Court  that 
the  passing  of  private  and  local  Bills  is  not,  strictly 
speaking,  legislation  at  all,  but  is  an  exercise  of 
the  parliamentary  right  to  grant  a  petition  for 
special  privileges,  and  thus  is  an  exception  to 
general  legislation.  As  the  exercise  of  this  right 
is  never  undertaken  by  Parliament  except  by  the 
promotion  of  private  parties,  who,  through  counsel, 
attend  and  follow  each  legislative  step  of  the  Bill 
— steps  which  are  never  continued  when  it  is 
abandoned  by  such  private  parties,  —  a  court  of 
equity  has  the  right  to  prevent  the  promotion  of 
such  Bills,  the  effect  of  which  would  be  practically 
to  operate  as  violations  of  contract,  express  or 
implied. 

Mr.  Sterne  scouted  the  idea  that  party  responsi- 
bility existed  as  a  fact  in  connection  with  the 
administration  of  our  Government.  Addressing  a 


v  REFORM  OF  LEGISLATION        143 

body  of  men,  more  than  usually  interested  in  all 
the  legislation  that  affects  the  State,  and  specially 
interested  in  the  legislation  affecting  the  city  of 
New  York,  he  asked  them  whether  either  political 
party  had  advanced  or   proposed  any  scheme  of 
legislation  for  the  coming  year  of  a  public  nature  ; 
whether  either  or  any  party  was  pledged  to  any 
scheme  of  legislation  for  the  coming  year  as  to  this 
city  ;  whether  any  of  them  knew  what  measures 
were  likely  to  be  introduced  and  to  prove  success- 
ful which  were  of  a  public  nature  ;  and  whether 
there  was  any  one  to  be  charged  with  the  duty  of 
promoting  such  measures  in  the  halls  of  legislation. 
As  it  was  manifestly  impossible  to  answer  any  of 
these  questions  in  the  affirmative,  it  was  impossible 
to  resist  the  force  of  Mr.  Sterne's  statement  that, 
even  as  to  public  measures,  we  are  remitted  entirely 
to  haphazard  legislation,  such  as  may  be  suggested 
by   private   interest  or   by   private  ambition,  and 
that    in    the    absence    of  leadership,   even    public 
legislation  is  thrown  into  the  arena  of  the  lobby  to 
be  fought  over,  to  take  its  chance  with  private 
legislation,  and  to  depend  upon  the  accidents  of 
the  conduct  of  chairmen  of  committees,  engrossing 
clerks  and  committee  clerks,  whether  it  is  to  be 
adopted  and  come  in  the  shape  of  a  Bill  into  the 
hands    of   the    Governor.      The    conclusion    was 
certainly  irresistible  that,  in  a  community  in  which 
legislation  plays  so  important  a  part,  there  should 
be   no   longer   tolerated   a   state  of  affairs    which 
annually  gives  us  laws  without   plan,  and  enact- 
ments without  examination. 

It  was  eminently  characteristic  of  Mr.  Sterne 


i44          LIFE  OF  SIMON  STERNE      CHAP. 

that  once  he  had  convinced  himself  of  the  public 
necessity  of  some  great  measure  of  reform,  he 
should  immediately  set  about  finding  the  agency 
most  appropriate  for  carrying  it  out.  This  usually 
involved  the  education  of  a  number  of  men,  all 
of  them  busy,  and  most  of  them  constitutionally 
sceptical  of  the  value  of  any  counsel  of  perfection 
in  matters  affected  by  practical  politics.  On  this 
question  of  the  prevention  of  defective  and  slipshod 
legislation,  the  legal  profession  was,  naturally,  the 
constituency  most  likely  to  have  an  intelligent 
appreciation  of  the  importance  of  the  appeal.  We 
accordingly  find  Mr.  Sterne  addressing  the  American 
Bar  Association  at  its  annual  meeting  at  Saratoga 
on  August  24,  1884,  on  the  subject  with  which 
his  name  had  already  become  identified,  and  a 
year  later  we  find  him  making  a  report  as  chair- 
man of  a  committee  appointed  by  the  Association 
of  the  Bar  of  the  city  of  New  York,  on  a  plan  for 
improving  the  methods  of  legislation  of  this  State. 
In  this  report,  a  special  appeal  is  made  to  lawyers 
to  bestir  themselves  in  correcting  the  radical  defects 
existing  in  the  methods  of  legislation,  because  they 
are  thereby  cheated  of  a  boon  common  to  all  other 
professions,  that  increasing  years  bring  rest  in 
labour.  But  the  hasty  and  prolific  legislation  of 
the  time,  and  withal  the  entirely  irresponsible 
methods  of  law-making,  render  the  lawyer's  experi- 
ence and  knowledge  of  much  less  use  to  him  than 
it  would  otherwise  be.  He  went  on  to  show  that 
the  constitutional  restrictions  of  1875,  in  restrain- 
ing the  Legislature  from  passing  special  laws  in  a 
large  number  of  enumerated  cases,  had  not  brought 


v  REFORM  OF  LEGISLATION        145 

about  the  beneficial  results  which  were  anticipated 
from  them,  as  even  the  number  of  laws  which  are 
annually  enacted  had  not  been  materially  reduced 
by  these  restrictions.  In  1874,  before  the  constitu- 
tional amendments  took  effect,  the  annual  number 
of  laws  was  little  more  than  600,  and  in  1884  the 
Acts  of  the  year  amounted  to  550.  These  con- 
stitutional restrictions  had,  however,  brought  with 
them  an  evil  in  many  respects  more  dangerous 
than  that  which  they  were  intended  to  cure, 
namely,  that  of  creating  a  large  body  of  laws 
having  special  and  local  objects  in  view,  but  which 
are  disguised  under  the  form  of  general  legislation, 
so  that  it  has  now  become  wellnigh  impossible  for 
a  lawyer,  without  the  most  recent  volume  of  Acts 
before  him  to  give  his  opinion  upon  any  legal 
point,  as  it  is  within  the  range  not  only  of  possi- 
bility, but  even  of  probability,  that  t the  Legislature 
was,  at  the  instance  of  some  private  or  special 
interest,  induced  to  change  the  old  landmarks  to 
meet  some  special  case.  He  cited  as  one  of  the 
most  recent  illustrations  of  this  fact,  the  general 
law  passed  in  1884,  authorising  corporations 
organised  under  any  general  or  special  law  of  this 
State,  for  any  kind  of  manufacturing  business,  to 
consolidate  into  a  single  corporation,  which  Act 
was  devised  specially  for  the  sinister  purpose  of 
enabling  the  Gas  Companies  to  consolidate  their 
separate  corporate  entities. 

The  report  in  question,  which  is  obviously  the 
work  of  Mr.  Sterne,  declared  it  to  be  safe  to  say 
that  one-half  of  the  changes  in  the  general  law  are 
moved  and  brought  ^bout  by  some  special  or 


146          LIFE  OF  SIMON  STERNE      CHAP. 

personal  interest,  and  with  the  specific  purpose  of 
meeting  a  special  case.  No  adequate  machinery 
exists  in  American  legislative  bodies  by  which 
these  motives  can  be  scrutinised  and  a  test  afforded 
of  whether  the  law  should  be  enacted,  nor  is  there 
any  responsible  machinery  organised  in  our  State 
Governments  either  to  protect  the  general  body 
of  the  law  from  encroachment  and  change  of  this 
character,  or  to  compel  the  promoters  of  special 
and  local  Bills  demanded  by  private  interest  to 
establish  the  necessity  or  expediency  of  granting 
the  privileges  which  they  involve.  Attention  was 
directed  to  the  well-known  fact  that  members  of 
the  Legislature  are,  with  very  rare  exceptions,  not 
the  authors  of  the  Bills  which  they  introduce.  The 
legislative  committees  cannot  give,  after  their  in- 
troduction, the  time  required  for  their  considera- 
tion, and  have  no  machinery,  even  if  there  were 
time,  by  which  the  objects  and  purposes  of  the 
Bills,  and  the  effects  they  are  likely  to  have  upon 
the  interests  which  are  to  be  directly  or  remotely 
affected  by  their  passage,  can  be  definitely  ascer- 
tained. Under  such  conditions,  it  was  hardly  to 
be  wondered  at  that  the  lobby  should  have  con- 
tinued as  powerful  an  agency  for  evil  as  ever.  So 
long  as  legislators  are  compelled  to  rely  upon  ex 
'parte  statements  for  information  in  regard  to  any 
proposed  law,  an  organised  lobby  became  as  neces- 
sary a  concomitant  to  such  a  condition  as  a  trained 
bar  is  a  natural  incident  to  the  due  and  proper 
administration  of  justice. 

The  profound  distrust  of  the  results  of  legis- 
lative  activity   had    become    such   that   the    most 


v  REFORM  OF  LEGISLATION        147 

popular  remedy  for  existing  evils  was  that  of 
biennial  legislative  sessions.  The  desire  for  these 
arose  from  the  widely-diffused  conviction  that  the 
legislative  session  was  on  the  whole  an  evil,  and  to 
diminish  the  activity  of  that  evil  by  one-half  would 
be  to  confer  a  benefit  on  the  community.  But 
as  the  author  of  this  report  went  on  to  show,  such 
a  remedy  deals  merely  with  the  symptoms  of  the 
disease  and  not  with  its  source.  If  the  evil  arise  from 
an  insufficient  examination  of  the  Bills  before  the 
legislative  body,  and  the  absence  of  responsibility 
for  their  preparation  and  enactment,  this  proposed 
remedy  will  not  alone  fail  to  obviate  the  existing 
difficulties,  but  the  attempt  to  compress  within  the 
short  period  of  a  legislative  session  once  in  two 
years  the  work  which  is  now  performed  in  twice 
the  time  by  annual  sessions  would  have  a  tendency 
to  decrease  the  present  inadequate  scrutiny  and  care, 
and  thus  necessitate  greater  haste,  and  therefore 
intensify  rather  than  diminish  the  existing  im- 
perfections of  the  system  of  law-making. 

Having  considered  the  character  of  the  evils, 
whose  existence  was  undeniable,  the  Committee 
announced  as  their  conclusion  that  the  cure  for 
these  evils  was  to  be  found  in  following  the  prin- 
ciple which  has  operated  successfully  in  English 
parliamentary  procedure,  for  more  than  a  genera- 
tion, as  to  local  and  private  as  well  as  general  laws. 
Mr.  Sterne  had  pointed  out  in  his  address  before 
the  American  Bar  Association,  that  the  English 
statesmen  of  the  preceding  generation  had  wisdom 
enough  to  see  that  successfully  to  cope  with  the 
ingenuity  of  the  captains  of  the  modern  industrial 


148          LIFE  OF  SIMON  STERNE      CHAP. 

era,  it  was  necessary  to  arm  the  Legislature  with 
additional  and  better  means  of  sifting  legislation, 
so  as  to  separate  the  useful  from  the  mischievous. 
At  an  earlier  period,  but  subsequent  to  the 
foundation  of  our  own  Government,  the  British 
Cabinet  had  been  converted  from  being  merely 
personal  advisers  to  the  Crown  to  occupancy  of  the 
position  of  the  Chief  Executive  Committee  of 
Parliament.  As  part  of  the  responsibility  which 
attached  to  the  party  in  power,  the  guardianship 
over  the  law  and  the  changes  to  be  made  therein 
to  meet  public  exigencies,  was  assumed  by  the 
ministry  in  office  as  part  of  its  duties.  We,  on 
the  other  hand,  have  adopted  party  government 
without  attaching  to  it  this  grave  party  responsi- 
bility. Our  public  laws  and  the  changes  made  in 
them  are  not  committed  to  the  care  of  any  official 
body. 

This  important  change  in  the  English  Constitu- 
tion was  the  first  step  in  a  process  of  legislative 
development  and  reform  which  culminated  in  the 
adoption  of  the  standing  orders  of  1848,  and  com- 
pleted the  separation  between  the  method  of  treat- 
ment of  public  from  private  and  local  Bills.  The 
former  are  placed  under  the  wing  of  the  Cabinet. 
The  latter  are  no  longer  treated  as  legislation, 
strictly  speaking,  but  as  petitions  to  Parliament  for 
special  immunities  or  privileges  which  are  con- 
ducted by  private  parties,  subject  to  a  strict  rule  of 
procedure,  tried  as  a  lawsuit,  the  petition  and  Bill 
being  filed  before  the  beginning  of  the  session,  and 
opposed  at  every  step,  as  a  whole  and  in  detail,  by 
the  Board  of  Trade,  and  by  every  private  interest 


v  REFORM  OF  LEGISLATION        149 

which  may  be  menaced  or  affected  thereby. 
Counter-petitions,  attorneys,  counsel,  and  a  trial, 
a  standing  and  a  day  in  court  to  all  parties  in 
interest  before  the  Bill  can  become  a  law,  prevent 
wrong  to  individuals  ;  counsel  for  the  ministry  for 
the  public  Bills,  and  special  counsel  for  the  private 
Bills,  committees  to  aid  them  in  the  intelligent  dis- 
charge of  their  work,  prevent  the  possibility,  by 
collusion,  of  working  a  public  wrong. 

By  virtue  of  this  system  of  standing  orders,  no 
private  or  local  Bill  is  considered  by  Parliament 
unless  deposited  in  the  private  Bills  office  sixty  days 
in  advance  of  the  session.  If  it  be  a  railway  or 
canal  project,  a  deposit  of  5  per  cent  of  the  esti- 
mated cost  of  construction  must  be  made  at  the 
time  of  filing  the  Bill.  If  it  involve  the  exercise  of 
the  right  of  eminent  domain,  evidence  must  be 
given  that  notice  of  intention  to  file  the  Bill  has 
been  served  on  all  the  persons  whose  interests  are 
likely  to  be  affected  adversely  by  the  legislation. 
Accompanying  these  documents,  as  to  the  contents 
of  which  the  most  precise  instructions  are  given  in 
the  rules,  there  must  be  deposited  a  sum  of  money 
to  cover  the  expenses  of  preliminary  examinations 
of  the  Bill,  in  order  to  ascertain,  officially,  whether 
the  standing  orders  have  been  complied  with. 

The  opponents  of  the  Bill  have,  until  fifteen  days 
before  the  opening  of  the  session  of  Parliament,  to 
file  their  objections  to  the  Bill,  and  to  point  out 
wherein  the  standing  orders  have  not  been  com- 
plied with  by  the  petitioners.  If,  either  by  the 
unaided  investigations  of  the  official  examiners, 
or  at  the  suggestion  of  adversaries,  it  becomes 


150          LIFE  OF  SIMON  STERNE       CHAP. 

apparent  that  the  promoters  have  failed  to  give 
the  requisite  notice  by  advertisements  and  by  per- 
sonal service,  or  that  the  map  is  not  in  conformity 
with  the  Bill,  or  in  any  other  particulars  they  have 
failed  to  comply  with  the  standing  orders,  the  Bill 
is  indorsed  "  standing  orders  not  complied  with," 
and  Parliament  is  relieved  from  its  consideration 
during  that  session.  If  there  be  a  question  whether 
the  standing  orders  have  been  complied  with,  the 
parliamentary  agent  is  heard  upon  the  subject.  If 
he  can  explain  a  seeming  neglect,  the  examiners 
may  allow  the  Bill  to  be  entertained,  but  no  sub- 
stantial deviation  from  the  rules  is  tolerated,  and 
non-compliance  means  non-consideration.  If  the 
Bill  is  entertained,  a  further  payment  is  to  be  made 
by  the  promoters  to  pay  its  way  during  its  con- 
sideration in  committee.  Each  of  these  payments 
is  about  ^50.  Bills  are  then  separated  by  the 
Chairman  of  the  Ways  and  Means  Committee  and 
the  Chairman  of  Committees  of  the  House  of  Lords. 
Those  that  involve  railway  or  canal  projects,  or 
which  involve  the  exercise  of  the  right  of  eminent 
domain,  are  referred  for  special  scrutiny  to  the 
Board  of  Trade.  All  are  examined  by  the  Chair- 
man of  the  Committees  of  the  House  of  Lords, 
who  makes  his  suggestions  and  amendments,  which 
are  generally  accepted  by  the  parliamentary  agents, 
who  are  the  attorneys  for  the  promoters  of  private 
and  local  Bills,  in  filing  and  conducting  them  until 
they  come  to  be  considered  by  the  parliamentary 
committees  in  open  session. 

The  Bills  are  then  referred  for  trial.     The  trial 
committees  are  composed    of  chairmen    who  are 


v  REFORM  OF  LEGISLATION       i$i 

members  of  Parliament,  one  or  two  additional 
members,  and  several  experts  thoroughly  conversant 
with  the  technical  elements  of  the  subject-matter 
of  the  Bill,  and  who  need  not  be  members  of  Par- 
liament. A  calendar,  analogous  in  character  to 
calendars  of  trial  causes  in  a  court  of  justice,  is  then 
prepared,  containing  a  list  of  the  Bills,  and  a  trial 
is  had  in  which  the  petitioners  as  well  as  the 
adversaries  of  the  Bill  are  represented  by  counsel. 
The  question  of  the  expediency  of  the  passage  of 
the  proposed  measure  is  determined  first  as  a  whole, 
on  the  preamble,  and  then  by  sections  ;  and  every 
injury,  direct  or  indirect,  is  presented  for  the  con- 
sideration of  the  Committee,  to  be  avoided,  if 
possible,  by  amendments  to  clauses  of  the  Bill, 
or  by  the  award  of  proper  compensation.  The 
adversary  who  succeeds  in  defence  of  a  property 
right,  to  secure  by  amendment  the  insertion  of  a 
clause  which  in  all  fairness  should  have  originally 
been  inserted  in  the  draft  deposited  by  the  pro- 
moters of  the  Bill,  mulcts  the  latter  to  pay  the 
contestant's  costs.  If  the  Committee  determine  in 
favour  of  the  Bill,  they  so  report,  together  with 
their  amendments,  to  the  House,  and  with  but  very 
rare  exceptions  the  House  regards  the  findings  of  a 
committee  on  a  private  or  local  Bill  as  final.  This 
method  of  ascertaining  the  merits  of  a  measure  is 
so  complete,  the  examination  of  witnesses  and  ex- 
perts is  so  thorough,  every  element  that  can  en- 
lighten the  mind  of  the  legislator  has  been  brought 
to  bear  with  so  much  accuracy  and  forensic  skill, 
that  the  margin  of  human  error,  after  such  a  trial, 
is  very  small.  The  amount  paid  to  Parliament  for 


152         LIFE  OF  SIMON  STERNE      CHAP. 

considering  a  private  or  a  local  measure  is,  on  an 
average,  $1000  a  Bill.  By  these  payments,  which 
are  somewhat  in  excess  of  the  cost  of  the  service  of 
examination,  the  expense  of  private  legislation  is 
not  only  avoided  to  the  English  Parliament,  but 
even  the  expense  of  public  legislation  is  defrayed. 

The  difference  between  that  system  and  the  no- 
system  of  the  United  States  was  obviously  enor- 
mous. The  English  system  places  the  business 
of  drafting  proposed  legislation  (both  public  and 
private)  in  the  hands  of  skilled  specialists,  all  parlia- 
mentary draughtsmen.  The  services  of  the  parlia- 
mentary draughtsmen  and  counsel  are  employed  by 
the  Speaker,  by  the  chairmen  of  committees,  and 
by  the  ministry  ;  and  they  are  consulted  by  the 
parliamentary  agents  in  important  cases  of  private 
legislation.  This  system  has  caused  the  lobby 
virtually  to  disappear,  a  fair  trial  and  no  favour 
being  secured  for  private  Bills.  A  member  of  a 
committee  of  the  English  Parliament  regards  being 
button-holed  or  talked  to  in  the  interest  of  a 
measure  before  his  committee  almost  with  the  same 
disfavour  with  which  a  self-respecting  judge  would 
regard  a  like  attempt  to  entrap  his  judgment,  or 
influence  his  opinion.  In  place  of  the  lobby  as  we 
know  it,  England  has  a  trained  bar  analogous  to 
the  Common  Law  bar  ;  the  parliamentary  agents 
take  the  place  of  attorneys,  and  parliamentary 
counsel  take  the  place  of  barristers.  A  division 
has  been  made  between  the  treatment  of  public  and 
private  legislation,  which  recognises  the  funda- 
mental distinction  between  them  to  the  advantage 
of  both.  Another  important  fact  was  recognised 


v  REFORM  OF  LEGISLATION        153 

by  this  change  ;  that  in  the  pressure  of  modern 
society  for  development,  the  general  body  of  the 
law  cannot  possibly  keep  pace  with  its  ever  varying 
features  and  necessities  ;  no  attempt,  therefore, 
was  made  to  restrict  private  legislation,  but  it  was 
subjected  to  rule  and  form,  submitted  to  scrutiny, 
and  surrounded  by  safeguards.  Thus,  while  the 
system  meets  the  demands  for  legislation  of  a 
private  or  local  character  to  vary  the  general  law, 
it  does  not  inflict  any  injustice  on  other  private  and 
local  interests,  and  the  general  body  of  the  law  is 
not  allowed  to  be  torn  to  pieces  at  the  demand  and 
under  the  pressure  of  such  interests. 

Mr.  Sterne  steadfastly  maintained  that  the 
remedy  for  the  acknowledged  evils  of  our  system 
lay  in  the  adoption  of  the  English  practice  adapted 
and  simplified  to  accord  with  the  traditions  of 
American  legislation.  As  chairman  of  a  special 
committee  of  the  Board  of  Trade  and  Transporta- 
tion, charged  with  the  duty  of  proposing  amend- 
ments to  the  legislative  articles  or  the  Constitu- 
tion of  the  State  of  New  York  for  presentation 
to  the  convention  of  1894,  Mr.  Sterne  prepared 
certain  sections  on  legislation  calculated  to  introduce 
greater  deliberation  into  the  treatment  of  public 
Bills,  and  to  stamp  all  private  and  local  Bills  with 
the  character  of  petitions  subject  to  public  hearing 
and  quasi-judicial  examination.  He  succeeded  in 
having  the  Convention  accept  a  single  provision 
out  of  the  whole  scheme  of  constitutional  reform 
submitted  by  him  to  bring  order  and  method 
into  legislation.  This  was  the  provision  requir- 
ing the  submission  to  the  Mayor  of  Cities  of 


154          LIFE  OF  SIMON  STERNE      CHAP. 

local  laws  relating  to  their  municipalities.  No 
more  important  contribution  has,  of  late  years, 
been  made  to  municipal  home  rule  in  this  State, 
and  none  whose  good  results  have  been  so 
conspicuously  manifest.  Later,  after  it  had  been 
demonstrated  to  the  author  of  these  amend- 
ments that  his  views  were  still  considerably  in 
advance  even  of  the  progressive  opinion  of  the 
time  on  such  questions,  Mr.  Sterne  was  appointed 
one  of  five  commissioners  to  recommend  changes 
in  the  methods  of  legislation.  In  this  capacity  he 
made  the  most  careful  and  painstaking  study  of  the 
legislative  procedure  of  most  of  the  States  of  the 
Union,  and  his  hand  is  very  clearly  apparent  in  the 
report  of  this  Commission,  addressed  to  Governor 
Morton  on  November  30,  1895.  Being  an  emin- 
ently practical  man,  and  not  prone  to  insist  on 
what  was  manifestly  unattainable,  he  indorsed  in 
this  report  the  opinion  of  his  associates  that — 

So  elaborate  a  system  as  that  which  England  has 
developed  to  guard  its  legislation  from  becoming  mis- 
chievous to  the  community,  it  would  not  be  practicable 
to  recommend  for  adoption  in  the  State  of  New  York. 
Progress  must  be  taken  cautiously  in  that  direction,  and 
such  steps  in  legislative  reform  must  be  taken  from  the 
experience  of  sister  American  Commonwealths,  rather 
than  from  a  highly -developed  form  of  European  pro- 
cedure ;  making  advances  beyond  such  experience  only 
when  the  greater  pressure  of  business  upon  the  Legislature 
of  the  State  of  New  York,  as  compared  with  the  legisla- 
tive bodies  of  other  States,  imperatively  demands  a  treat- 
ment differing  from  their  own. 

The  Commission,  therefore,  while  recognising 


v  REFORM  OF  LEGISLATION        155 

the  great  superiority  of  the  English  system  over 
those  which  are  in  vogue  in  American  Common- 
wealths, also  recognised  that  such  changes  as  they 
contemplated  must  be  gradual  in  their  adoption 
to  secure  permanence,  and  be  in  conformity  with 
the  spirit  and  habits  of  the  people  adopting  them. 
A  beginning  had,  at  least,  been  made  by  the 
requirement  that  Bills  should  be  printed,  and  on 
the  desks  of  legislators  three  days  before  their  en- 
actment, and  by  the  further  amendment  to  the 
Constitution  by  the  Convention  of  1894  relating 
to  laws  which  affect  cities.  Nothing  had,  however, 
been  done  to  afford  an  opportunity  to  improve 
and  perfect  proposed  legislation  while  on  its 
passage  by  compulsory  timely  notice  of  intention 
to  apply  for  its  passage,  and  by  proper  hearings 
while  the  Bill  is  on  its  way  to  become  law.  The 
Commission  had  the  benefit  of  the  opinions  of  men 
of  large  legislative  experience,  and  a  general  agree- 
ment was  reached  that  to  secure  better  legislation 
in  the  future  it  was  necessary  to  methodise  and 
improve  it  in  the  following  particulars  : — 

First.  That  all  private  and  local  Bills,  including  Bills 
which  relate  to  municipalities,  shall  be  filed  either  before 
the  beginning  of  the  legislative  session,  or  within  thirty 
days  before  their  presentation  to  the  Legislature,  unless 
the  Governor  of  the  State  takes  upon  himself  the  re- 
sponsibility of  making  a  special  recommendation  of 
urgency  ;  and  that  each  Bill  shall  be  accompanied  with 
proof  that  a  notice  was  duly  published  or  personally  served, 
or  both,  as  the  circumstances  of  the  case  may  require,  on 
every  interest  which  may  be  affected  by  such  legislation. 

Second.  That  the  petition  for  such  legislation  shall 
set  forth  its  general  scope,  object,  and  utility.  This 


156          LIFE  OF  SIMON  STERNE      CHAP. 

petition  may  be  answered  in  writing  by  any  adverse 
interest.  Such  petition  and  one  or  more  answers,  which 
partake  of  the  nature  of  pleadings  in  a  civil  suit,  shall 
be  filed  with  the  Bill,  and  these  petitions  and  counter- 
petitions,  duly  signed,  shall  accompany  each  Bill  of  this 
character  during  the  whole  of  its  legislative  progression. 

Third.  That  Committees  of  Revision,  both  Senate 
and  Assembly,  should  have  their  powers  enlarged  for  the 
consideration  of  all  measures,  both  public  and  private,  or 
local ;  and  that  each  of  such  committees  shall  be  assisted 
in  its  labours  by  a  lawyer  of,  at  least,  ten  years'  standing, 
with  an  adequate  salary  to  ensure  proper  talent,  who  shall 
have  such  assistance  as  may  be  necessary.  These  com- 
mittees to  act  as  advisory  committees  for  re-drafting  Bills, 
and  for  recommendations  as  to  their  effect,  with  sug- 
gestions as  to  their  operation  upon  the  general  body 
of  the  law,  and  to  point  out  constitutional  or  other 
defects.  Such  counsel  to  be  appointed  by  the  Governor, 
Lieutenant -Governor,  and  Speaker  of  the  House  for  a 
fixed  term. 

Fourth.  That  a  day  calendar  shall  be  printed  one  day 
in  advance,  and  distributed  among  the  members. 

Fifth.  That  general  public  measures  should  be  re- 
ferred, before  passage,  to  the  Commissioners  to  Revise 
the  Statutes,  to  report  upon  the  effect  of  such  measures 
and  their  place  in  the  body  of  the  statute  law. 

Sixth.  That  Committees  of  the  Legislature  should 
be  empowered  to  take  testimony. 

Seventh.  That  every  Committee  should  be  required 
to  report  the  private  and  local  Bills  which  have  been  sub- 
mitted to  it,  with  the  reasons  for  its  action,  within  a 
certain  number  of  days  after  the  Bill  has  been  committed 
to  its  care. 

Eighth.  That  some  of  the  Senate  committees  should 
be  enlarged,  particularly  such  committees  which  have 
imposed  upon  them  the  most  onerous  duties  of  the  legis- 
lative session — such  as  the  Committee  on  Cities,  the  Com- 
mittee on  Finance,  and  the  Committee  on  Judiciary. 


v  REFORM  OF  LEGISLATION        157 

Ninth.  That  a  proportionate  share  of  the  printing 
expenses  incident  to  a  legislative  session,  which  amounted 
during  the  last  session  to  the  sum  of  $200,000,  should  be 
borne  by  the  parties  interested  in  the  Bills,  and  in  whose 
interest  and  at  whose  request  legislation  is  considered — 
particularly  moneyed  corporations,  stock  corporations,  or 
private  individuals. 

Tenth.  That  the  general  laws  should  be  completed 
as  rapidly  as  possible,  and  all  public  statutes  should  be  in- 
corporated into  them  or  into  one  of  the  Codes. 

Eleventh.  That  all  Bills  amendatory  of  the  general 
laws,  or  of  the  Code,  should  refer  briefly  in  their  title  to 
the  general  subject  to  which  they  relate. 

Twelfth.  That  all  amendments  to  city  charters,  or 
to  the  general,  municipal,  and  corporation  laws  should 
briefly  state  in  the  title  the  subject  of  the  sections  of  the 
statute  which  are  proposed  to  be  amended. 

Thirteenth.  That  with  reference  to  every  Bill  affect- 
ing any  department  of  the  State  Government,  or  the 
general  administration  of  the  law,  subject  to  the  super- 
vision of  such  department,  notice  thereof  shall  be  given 
to  the  head  of  the  department  having  the  administration 
of  such  subject  under  his  supervision,  and  an  opportunity 
afforded  him  to  be  heard  before  the  Bill  is  reported  or 
passed. 

It  was  explained  that  most  of  these  propositions 
had  been  considered  in  other  States  of  the  Union, 
and  that  the  more  important  of  them  have  been 
adopted  in  some  of  those  States  and  work  well. 
Attention  was  particularly  called  to  the  provision 
relating  to  the  giving  of  notice  of  intention  to 
apply  for  the  passage  of  special  and  local  Bills,  and 
also  to  the  requirements  that  applicants  for  Bills 
shall  pay  the  expense  of  printing  them,  and  that 
committees  shall  report  within  a  certain  time  upon 


158          LIFE  OF  SIMON  STERNE       CHAP. 

private  and  local  Bills.  The  States  of  Rhode 
Island,  Pennsylvania,  New  Jersey,  North  Carolina, 
Georgia,  Florida,  Alabama,  Texas,  Arkansas,  and 
Louisiana  have  constitutional  provisions  on  the 
subject  of  publication  of  notice  of  intention  to 
apply  for  certain  Bills  before  they  can  be  considered 
by  the  Legislature. 

The  constitution  of  Pennsylvania  provides  that 
no  local  Bill  shall  be  passed  unless  notice  of 
the  intention  to  apply  therefor  shall  have  been 
published  in  the  locality  where  the  matter  or  thing 
to  be  affected  may  be  situated,  which  notice  shall 
be,  at  least,  thirty  days  prior  to  the  introduction 
into  the  General  Assembly  of  such  Bill  in  the 
manner  to  be  provided  by  law,  the  evidence  of 
such  notice  having  been  published  shall  be  exhibited 
in  the  General  Assembly  before  such  Act  shall  be 
passed.  This  has  been  followed  by  an  Act  sub- 
stantially incorporating  the  constitutional  provision, 
and  amplifying  it  for  the  purpose  of  making  it 
more  effectual. 

The  report  went  on  to  point  out  that  although 
other  States  have  embodied  either  in  their  con- 
stitutions or  by  statutory  enactments,  like  provi- 
sions to  those  of  Pennsylvania,  that  State  affords 
in  its  characteristics  and  legislative  necessities  a 
closer  analogy  to  the  State  of  New  York  than  any 
of  its  sister  States  with  the  possible  exception  of 
Massachusetts.  It  was  thus  assumed  that  a  legis- 
lative reform  which  has  worked  well  in  that  State 
could  not  but  prove  beneficial  in  the  State  of  New 
York.  Hence,  the  Commission  directed  inquiries 
to  be  made  of  public  men  and  leading  lawyers  of 


v  REFORM  OF  LEGISLATION        159 

the  State  of  Pennsylvania,  and  received  from  them 
the  unanimous  assurance  that  the  requirement  of 
timely  notice  of  intended  legislation  and  of  the 
publication  of  the  general  purposes  of  the  Bill,  in 
advance  of  the  session  of  the  Legislature  or  the 
consideration  of  the  measure,  has  prevented  the 
introduction  and  passage  of  a  large  number  of 
Bills  like  those  which  had  previously  encumbered 
the  statute  book  of  that  State  ;  that  it  has  pre- 
vented ill-considered  measures,  diminished  the  evil 
of  over-legislation,  and  been  fruitful  of  unmixed 
benefits  to  the  inhabitants  of  Pennsylvania. 

Assembly  Rule  15  of  the  State  of  New  York 
provides  that  "  No  Bill  affecting  the  rights  of 
individuals,  or  of  private  or  of  municipal  corpora- 
tions, otherwise  than  as  it  affects  generally  the 
people  of  the  whole  State,  shall  be  reported  by  a 
Committee  unless  it  is  made  to  appear  to  the  satis- 
faction of  the  Committee  that  notice  has  been 
given  by  public  advertisement  or  otherwise  to  all 
parties  interested  without  expense  to  the  State." 
In  case  the  Bill  affects  the  rights  of  a  municipal 
corporation,  such  notice  shall  be  given  to  the 
Mayor  in  cities,  and  to  the  President  of  the  Board 
of  Trustees  in  villages.  This  rule  is  scarcely  ever 
observed,  but  both  the  law  (chap.  121,  Laws  of 
1818)  and  the  rule  are  a  recognition  that  notice 
of  some  kind  is  essential  to  good  legislation.  No 
requirement  to  secure  adequate  notice,  nor  for  the 
publication  of  the  intention  to  apply,  is  embodied 
in  the  Rule,  and  if  legislation  is  effected  without 
the  required  notice,  it  is  questionable  whether  there 
may  not  be  an  impairment  of  validity  by  reason  of 


160          LIFE  OF  SIMON  STERNE      CHAP. 

the  absence  of  such  notice.  The  Commissioners, 
therefore,  prepared  a  Bill  which  provided,  with 
great  precision  and  stringency,  for  such  notice  and 
the  filing  of  Bills  considerably  in  advance  of  their 
consideration.  In  addition  to  this  Bill  the  Com- 
mission recommended  that  a  constitutional  amend- 
ment on  this  subject,  similar  to  the  provision  in 
the  Pennsylvania  Constitution,  be  adopted  in  this 
State  so  as  to  carry  out  adequately  the  proposed 
reform. 

It  also  appeared  to  the  Commission  that  a  long 
step  in  the  right  direction  would  be  taken,  if 
Bills,  before  their  third  reading,  and  while  yet 
capable  of  amendment,  could  be  submitted  for 
scrutiny  and  revision  to  one  or  more  trained 
lawyers,  whose  only  client  in  the  matter  would  be 
the  State,  and  for  whose  conclusions,  if  satisfactory, 
a  carefully  selected  committee  of  the  best  men  in 
either  House  would  become  responsible.  This 
part  of  the  system  of  improved  legislative  methods 
which  the  Commission  decided  to  recommend,  had 
already  received  substantial  recognition  in  legis- 
lative procedure,  in  the  form  of  the  Committee 
on  Revision  of  the  Assembly.  By  Rule  16  of 
that  body,  this  committee  is  charged  with  the 
duty  of  examining  and  correcting  all  Bills  prior 
to  their  third  reading,  "  for  the  purpose  of  avoid- 
ing repetitions  and  unconstitutional  provisions, 
ensuring  accuracy  in  the  text,  and  references,  and 
consistency  with  the  language  of  the  existing 
statutes."  It  is  also  part  of  its  duty  to  "report 
whether  the  subject  sought  to  be  accomplished 
can  be  secured  without  a  special  act,  under  existing 


v  REFORM  OF  LEGISLATION       161 

laws,  or  without  detriment  to  the  public  interests, 
by  the  enactment  of  a  general  law."  Changes  in 
sense  or  legal  effect  and  material  alterations  in 
construction  are  guarded  by  the  provision  that 
they  shall  be  reported  as  recommendations,  and 
not  as  amendments.  It  is  the  testimony  of  those 
familiar  with  the  facts  that  some  good  has  been 
accomplished  by  this  committee  since  1890,  the 
time  of  the  adoption  of  the  present  rule,  but  that 
much  more  might  have  been  done  by  the  aid  of 
counsel  of  experience  and  ability,  and  by  enlarging 
the  duties  of  the  House  Committee,  and  equip- 
ping the  legislative  machinery  of  the  Senate,  with  a 
similar  committee,  equally  provided  with  proper 
counsel. 

The  Commission,  accordingly,  determined  to 
advise  the  amendment  of  the  legislative  law  so  as  to 
make  statutory  provision  for  committees  on  revision 
in  each  House,  with  counsel  therefor,  who  shall  be 
lawyers  of  experience,  and  receive  sufficient  com- 
pensation to  secure  the  grade  of  talent  required. 
The  fact  was  recognised  that,  in  1895,  ^e  Legis- 
lature had  charged  the  Commissioners  of  Statutory 
Revision  with  certain  duties  which  would  ordin- 
arily be  performed  by  legislative  counsel,  and  that 
such  duties  have  ever  since  been  discharged  by 
those  Commissioners  during  the  session.  But  it 
was  felt  that  there  was  urgent  necessity  for  the 
completion  of  the  collection  of  general  laws  which 
was  the  specific  purpose  for  which  the  Commis- 
sioners of  Statutory  Revision  were  appointed,  and 
it  was  anticipated  that  to  this  burden  was  likely 
to  be  added  the  herculean  task  of  a  scientific 

M 


1 62          LIFE  OF  SIMON  STERNE       CHAP. 

revision  of  the  Code  of  Civil  Procedure.  If  the 
Commission  of  Statutory  Revision  were  to  be,  in 
addition,  the  only  legal  adviser  of  the  Legislature 
during  many  months  of  each  year,  the  reduction 
of  the  general  statute  law  to  anything  like  system 
would  have  to  be  considered  as  indefinitely  post- 
poned. Besides,  the  great  majority  of  Bills  do 
not  reach  the  Commissioners  for  examination 
until  they  have  passed  both  Houses ;  and  to 
render  revisory  powers  of  any  considerable 
value,  they  must  be  exercised  before  the  third 
reading. 

How  slender  were  the  results  attending  the 
painstaking  labours  and  well  -  considered  recom- 
mendations of  the  Commission  of  1895,  may  be 
inferred  from  the  following  letter  addressed  by 
Mr.  Sterne  to  Governor-Elect  Roosevelt  in  regard 
to  the  changes  which  were  urgently  required  in 
the  methods  of  legislation,  —  a  letter  containing 
his  last  words  on  a  subject  about  which  he  had 
thought,  written,  and  spoken  with  unwearied 
assiduity  for  twenty  -  three  years,  and  whose 
adequate  treatment  will  be  one  of  the  testimonies 
which  posterity  will  bear  to  his  far-sighted 
sagacity  : — 

December  21,  1898. 

Hon.   THEODORE  ROOSEVELT, 
Governor-Elect  of  the  State  of  New  York. 

Sir — A  recent  paragraph  in  the  papers  indicating  that 
you  were  at  work  upon  your  message  to  the  Legislature, 
which  doubtless  will  outline  your  policy  as  Governor  of 
this  State,  made  me  feel  that  if  I  had  anything  to  say 
with  reference  to  such  policy,  I  should  express  it  before 
the  message  is  completed. 


v  REFORM  OF  LEGISLATION        163 

Although  in  different  party  ranks,  I  have  during  my 
whole  adult  life  striven  to  be,  as  a  Democrat,  as  inde- 
pendent as  you  have  been,  as  a  Republican,  and  have  not 
hesitated,  either  by  silence  and  inactivity,  or  by  positive 
revolt  and  opposition,  to  indicate  or  to  express  my  con- 
victions when  I  thought  my  party  was  in  the  wrong,  and 
was  misleading  the  voters  of  the  city,  state,  or  country. 

I  address  the  views  herein  contained  to  you,  because 
I  am  thoroughly  impressed  with  the  conviction  of  the 
sincerity  of  your  opposition  to  the  sinister  interests 
which  control  party  policy,  whether  such  interests  are 
labelled  Democratic  or  Republican.  You  have  proved 
yourself  a  brave  soldier,  as  well  as  shown  that  you  are 
imbued  with  the  proper  civil  courage  ;  and  I  therefore 
venture  to  draw  your  attention  to  certain  basic  lines  of 
policy  which  must  be  pursued  if  the  enemies  of  the  poli- 
tical welfare  of  the  Commonwealth  are  to  be  successfully 
suppressed  for  many  years  to  come. 

We  claim  to  be  a  practical  people,  and  are  very  im- 
patient with  the  theorist  so-called.  As  in  medical 
science  it  is  not  practical  common  sense  to  deal  with 
the  symptoms  of  a  disease  instead  of  constitutionally,  and 
the  man  who  treats  only  the  outward  signs  of  a  diseased 
condition  is  regarded  by  the  practical  medical  fraternity 
as  a  quack,  so  in  politics  the  hue  and  cry  against  the  boss, 
the  personal  abuse  of  Mr.  Croker  and  of  Mr.  Platt,  and 
the  warfare  against  them,  instead  of  fighting  the  system 
and  causes  which  produce  them,  and  of  which  they  are 
merely  the  exponents,  is  quackery.  No  amount  of 
admonition  to  legislators  that  they  shall  not  allow  them- 
selves to  be  bribed,  coerced,  or  controlled  by  personal  or 
political  considerations  to  perform  their  duties  in  accord- 
ance with  their  conscience  and  their  oaths  of  office,  and 
no  amount  of  pointing  directly  or  indirectly  at  Croker 
and  Platt  as  the  evil  geniuses  to  be  avoided  by  them, 
will  produce  the  slightest  effect,  and  is  only  quackery. 

Mr.  Platt's  strength  and  position  at  the  head  of  the 
Republican  organisation  of  the  State  of  New  York 


1 64          LIFE  OF  SIMON  STERNE      CHAP. 

arises  from  the  fact  that  for  a  century  and  more  the 
State  of  New  York  has  made  no  improvement  in  its 
methods  of  legislation.  I  speak  of  this  as  a  whole.  I 
am  well  aware  of  the  few  constitutional  efforts  that  have 
been  made  during  the  past  fifty  years  to  curb  and  bridle 
the  Legislature,  and  put  safeguards  around  legislation  ; 
but  these  efforts  were  misconceived  in  theory,  and  pro- 
duced little  or  no  good  results  in  practice.  Indeed,  some 
of  the  supposed  reforms  produced  practical  results  of  a 
most  mischievous  character.  With  few  exceptions,  every 
successive  Legislature  has  increased  the  number  of  Bills 
enacted  into  laws  over  those  that  preceded  it,  and  has  had 
under  consideration  a  correspondingly  increased  number 
of  Bills  which  have  failed  to  become  laws.  So  that  year 
after  year  a  great  mass  of  statutes,  scarcely  any  of  which  are 
prepared  by  any  public  body,  and  almost  all  representing 
some  private  interest,  emanate  from  the  Legislature  of 
the  State,  and  in  such  bulk  that  it  must  be  incontestably 
true  that  none  of  them  receives  proper  consideration, 
and  that  most  of  them  receives  no  consideration  at  all. 
Thus  a  vast  mass  of  undigested  matter,  unfortunately 
having  the  force  of  law,  is  every  year  dumped  upon  the 
community  to  work  out  its  mission  of  evil.  It  is  in  this 
situation  that  the  skilful  manipulator,  the  adroit  manager 
of  men,  the  guide  who  is  willing  to  take  the  responsi- 
bility upon  his  shoulders,  and  relieve  the  individual  mem- 
bers of  the  Legislature  from  a  responsibility  which  he 
cannot  help  but  feel,  and  for  which  he  is  neither  adequately 
equipped  nor  fully  competent,  becomes  a  source  of  danger 
to  the  community.  The  position  of  such  a  chieftain  is 
such  that  he  can  reap  a  great  profit  for  himself,  and  for 
the  organisation  which  he  represents.  That  this  is  not 
only  true  of  the  condition  of  the  legislation  of  New 
York  State,  but  also  applies  to  the  Congress  of  the 
United  States,  is  shown  by  the  fact  that  Senator  Edmunds, 
as  presiding  officer  of  the  Senate  of  the  United  States, 
at  the  conclusion  of  the  session  of  1885,  sa^  :  "It  may 
not  be  improper  for  me  to  say  that,  in  view  of  our  recent 


v  REFORM  OF  LEGISLATION        165 

experience,  it  may  be  doubted  that  Congress  can  con- 
gratulate itself  on  being  the  best  example  of  a  legis- 
lative body  conducting  its  business  with  that  deliberate 
and  timely  diligence  which  is  the  inseparable  handmaid 
of  wisdom  and  justice,  as  well  in  the  making  as  in  the 
administration  of  laws.  It  is,  I  think,  an  evil  of  large 
and  growing  proportions  that  measures  of  the  greatest 
importance,  requiring  much  time  for  proper  examina- 
tion and  discussion  in  detail,  are  brought  to  our  con- 
sideration so  late  that  it  is  not  possible  to  deal  with  them 
intelligently,  and  which  we  are  tempted  (over-tempted, 
I  fear),  to  enact  into  laws  in  the  hope  that  fortune,  rather 
than  time,  study,  and  reflection,  will  take  care  that  the 
public  suffer  no  detriment." 

Mr.  Carlisle,  the  Speaker  of  the  House  of  Representa- 
tives, in  the  same  year  and  at  the  same  hour,  and  surely 
without  consultation  with  the  President  of  the  Senate,  as 
he  belonged  to  a  different  political  party,  expressed  the 
same  sentiment  in  different  words  : — 

"  It  is  evident  that  unless  some  constitutional  or  legal 
provision  can  be  adopted,  which  will  relieve  Congress 
from  the  consideration  of  all,  or  at  least  a  large  part,  of 
the  local  and  private  measures  which  now  occupy  the 
time  of  the  committees  and  fill  the  calendar  of  the  two 
Houses,  the  percentage  of  business  left  undisposed  of  at 
each  adjournment  must  increase.  It  is  not  reasonable 
to  suppose  that  an  alteration  of  the  Constitution  could 
be  effected  ;  but  it  is  worthy  of  serious  consideration 
whether  a  general  law  might  not  be  enacted  which  would 
authorise  the  Executive  Departments  and  Courts  of 
Justice  to  hear  and  determine  these  matters,  under  such 
rules  and  regulations,  of  course,  as  would  amply  protect 
the  interests  of  the  Government  and  secure  to  the  citizen, 
doubtless,  a  more  expeditious  and  appropriate  remedy 
than  is  now  offered." 

Private  and  local  legislation  had  increased  to  such 
enormous  proportions  from  1865  to  1871  that  it  was  felt 
that  something  must  be  done  to  relieve  the  legislature 


1 66          LIFE  OF  SIMON  STERNE      CHAP. 

of  the  burden  and  the  corrupting  influence  of  such 
legislation.  Instead  of  following  the  example  of  Great 
Britain  which  methodised  its  legislation  by  its  parlia- 
mentary standing  rules,  and  subjected  all  private  and 
local  legislation  to  proper  trial,  when  a  half  century  ago 
it  met  with  the  same  difficulty  arising  from  the  growth 
of  corporate  interests  and  particularly  the  development 
of  the  railway  system  which  caused  much  traffic  in 
franchises  about  1842  and  1843,  lt  was  determined  in 
this  State  to  amend  the  Legislative  Article  of  the  Con- 
stitution. This  amendment  went  into  effect  January  i, 
1875,  as  the  result  of  the  recommendations  made  by 
a  Constitutional  Commission  appointed  by  Governor 
Hoffman.  Henceforth,  the  legislature  was  prohibited 
from  passing  private  or  local  Bills,  for  a  large  number 
of  specified  purposes,  which  it  was  supposed  could  be 
better  accomplished  by  the  enactments  of  general 
statutes.  It  was  thereby  expected  to  remedy  the  evil 
of  traffic  in  franchises,  and  careless  and  over-legislation 
from  which  this  State  was  then  suffering.  The  legis- 
lature of  1873  which  had  enacted  874  laws  was  then 
regarded  as  a  record  breaker  of  reckless  and  useless 
legislation,  and  was  held  up  as  a  warning  example  of  the 
result  of  permitting  private  and  local  legislation  where 
general  laws  could  be  enacted  upon  the  same  subject. 
Notwithstanding  this  constitutional  amendment,  the  out- 
put from  the  legislative  mill  at  Albany  has  in  recent 
years  steadily  increased,  so  that  notwithstanding  the 
constitutional  provision  of  1875,  instead  of  874  acts 
which  had  been  passed  in  1873,  1045  were  passed  in 
1895,  while  in  1896  the  number  increased  to  upwards 
of  2000,  and  in  1897  to  upwards  of  1592,  thus  showing 
that  this  constitutional  amendment  did  not  produce  the 
expected  result  of  diminishing  the  number  of  legislative 
enactments.  The  constitutional  amendment  did,  how- 
ever, produce  a  most  mischievous  result  which  greatly 
aggravated  certain  evils.  After  its  adoption,  the  practice 
of  concealing  under  the  guise  of  general  laws  legislation 


v  REFORM  OF  LEGISLATION        167 

designed  to  affect  private  interests  and  to  meet  individual 
cases  became  general.  This  practice  tends  to  destroy 
and  has  already  very  considerably  destroyed  the  symmetry 
of  the  laws,  and  has  substituted  fickleness  and  change- 
ableness  for  certainty  and  stability.  It  unsettles  judicial 
construction  and  precedent,  and  in  many  cases  deprives 
citizens  of  vested  rights  without  giving  them  an  oppor- 
tunity to  be  heard  in  their  own  behalf. 

Whilst  on  one  side  there  is  a  board  of  statutory 
revision  for  the  purpose  of  codifying  existing  miscellane- 
ous statutes  upon  the  same  subject-matter,  there  is  a 
constant  process  of  disintegration  going  on  in  the 
legislative  halls,  tearing,  under  the  impulse  of  the  con- 
stitutional provision  of  1875,  the  body  of  our  laws  to 
pieces  to  serve  special  and  private  ends.  The  state  of 
the  law  in  relation  to  so  important  a  matter  as  public 
assessments  in  the  cities  of  New  York  and  Brooklyn  was 
in  1875  so  lamentable,  that  the  then  Chief  Justice  of  the 
Court  of  Appeals  of  this  State  in  a  deliberate  opinion 
delivered  by  him  in  a  case  pending  before  that  Court, 
admitted  that  it  was  not  safe  for  the  Court,  after  oral 
and  written  argument  of  counsel,  to  speak  with  any 
degree  of  confidence  on  the  State  of  the  law  upon  that 
subject.  Matters  have  become  worse,  instead  of  better, 
since  that  time  ;  and  it  is  therefore  not  surprising  that 
in  this  mass  of  proposed  legislation  which  is  put  before 
the  legislature  each  year  for  enactment  into  law,  and  in 
the  mass  of  Bills  which  are  actually  enacted  into  law — 
a  bulk  so  great  that  the  statutes  of  1897  anc*  ^98 
embraced  respectively  2563  and  1616  closely  printed 
pages — it  becomes  perfectly  evident  that  it  is  not  within 
human  possibility  for  the  most  astute  and  conscientious 
member  of  the  Senate  or  Assembly  even  to  read  during 
the  brief  session  of  the  Legislature  the  mass  of  material 
that  is  placed  before  him,  much  less  to  deliberately 
consider  and  wisely  to  act  upon  measures  which  are 
expected  to  become  law.  Under  these  circumstances, 
it  is  but  natural  for  the  average  legislator  to  look  to  some 


1 68          LIFE  OF  SIMON  STERNE      CHAP. 

one  for  guidance,  and  he  feels  himself  helpless  in  conse- 
quence of  the  mass  of  material  with  which  he  has  to 
deal,  and  the  lack  of  all  machinery  to  winnow  and 
examine  it  preliminarily,  and  knowing  that  the  great 
bulk  of  the  Bills  are  dictated  by  personal  interests,  he 
turns  to  some  one,  and  to  whom  more  naturally  than 
the  leader  of  his  party,  to  whom,  more  or  less,  he  is 
indebted  for  elevation  to  power — to  ask,  what  of  this 
mass  shall  I  pass  ?  That  such  leader  finds  his  profit  in 
the  position  which  is  created  by  this  lamentable  neglect 
of  proper  organisation  of  the  law-making  machinery, 
and  that  the  party  supplies  a  kind  of  machinery  where 
the  Commonwealth  has  failed  to  provide  any  of  any 
kind,  is  a  natural  consequence.  It  is  the  neglect  of  the 
community,  of  its  lawyers,  of  its  law-makers,  of  its 
constitutional  advisers,  and  its  methods  which  has  created 
the  situation.  Mr.  Platt  and  Mr.  Croker  are  the  effects 
and  not  the  creators  of  the  general  demoralisation,  cor- 
ruption, and  confusion  which  attends  our  law-making 
and  which,  if  not  put  a  stop  to,  will  soon  undermine  our 
institutions. 

At  the  present  time  the  greater  part  of  the  Bills  which 
are  presented  to  the  Legislature  are  drawn  at  the  dictation 
of  private  and  local  interests  without  any  regard  to  their 
effect  upon  the  general  body  of  the  legislation  of  the 
State,  or  how  they  will  affect  adverse  interests,  or  touch 
the  general  public  weal.  They  are  introduced  at  any 
time  during  the  session.  There  is  a  slight  time  limita- 
tion, but  that  can  be  evaded.  The  Bills  are  considered 
by  committees  who  have  not  the  benefit  of  process  of 
trial  for  their  proper  sifting  and  the  critical  examination 
of  their  respective  provisions.  The  committee-men  are 
dependent  for  information  upon  assertions  of  one  side 
or  the  other,  and  not  upon  proof,  when  they  give  hearings 
upon  Bills.  The  pressure  upon  the  committees  is  so 
great  that  it  is  practically  impossible  for  even  the  best 
informed  and  the  most  industrious  legislator  to  understand 
what  changes  are  being  made  in  the  existing  laws  or  to 


v  REFORM  OF  LEGISLATION        169 

keep  himself  even  superficially  informed  as  to  half  the 
legislation  during  its  passage  in  the  Senate  or  Assembly, 
or  to  exercise  any  deliberate  judgment  before  he  votes 
on  any  question. 

Much  of  what  I  say  is  a  condensation  of  a  report 
submitted  to  the  Governor  of  this  State  on  November 
30,  1895,  and  made  by  me  as  a  fellow-commissioner  with 
such  practical  politicians  in  the  best  sense  as  Charles  T. 
Saxton,  Danforth  E.  Ainsworth,  John  J.  Linson,  and 
John  S.  Kenyon.  The  Commission  was  appointed  by 
Governor  Morton  to  make  recommendations  as  to 
changes  in  the  methods  of  legislation  in  the  State  of 
New  York.  A  copy  of  that  report  is  attached  to  this 
letter  in  confirmation  of  the  views  herein  expressed. 
Allow  me  to  quote  from  this  report  the  opinion  of  the 
Commissioners  on  the  subject  of  biennial  instead  of 
annual  sessions  of  the  legislative  body.  This  has  by  some 
people  been  proposed  as  a  remedy  for  the  evils  mentioned, 
and  the  public  mind  has  been  agitated  to  look  favourably 
upon  the  proposition,  and  your  co-operation  has  been 
asked  to  promote  the  final  passage  of  a  constitutional 
amendment  authorising  biennial  sessions.  The  report 
of  the  Commission,  which  has  my  approval  now  as  it 
had  then,  says  on  this  point : — 

u  The  Commissioners  have  considered,  only  to  dismiss, 
the  suggestion  that  any  relief  from  over-legislation  and 
careless  law-making  is  to  be  found  in  biennial  sessions 
of  our  legislative  bodies.  It  is  obvious  that  when  it  is 
impossible  under  the  existing  system  to  secure,  even  with 
annual  sessions,  the  time  necessary  for  careful,  deliberate 
and  painstaking  work,  and  when  the  pressure  for  legisla- 
tion, even  with  annual  sessions,  is  beyond  the  capacity 
of  the  legislature  to  deal  with  it  adequately,  such  pressure 
and  the  number  of  Bills  would  manifestly  be  largely 
increased  by  biennial  sessions,  with  a  consequent  decrease 
in  the  possibility  of  passing  carefully  and  deliberately 
considered  statutory  enactments.  The  undersigned 
Commissioners  have,  therefore,  determined  from  the 


i  yo          LIFE  OF  SIMON  STERNE      CHAP. 

outset  to  see  whether  the  methods  of  legislation  could 
be  improved,  instead  of  seeking  for  a  remedy  in  a  less 
frequent  meeting  of  the  legislative  body." 

I  draw  your  attention  to  the  wide  difference  in  method 
with  which  the  same  subject  has  been  treated  in  England. 
From  1840  to  1845  a  condition  existed  in  Parliament 
which  caused  Francis,  the  historian  of  the  English  railway, 
to»say  that  at  that  time  a  serious  doubt  prevailed  as  to 
the  freedom  of  the  British  Parliament  from  pecuniary 
corruption.  This  doubt  has  since  that  time  been  entirely 
removed,  mainly  because  a  clean  line  of  separation  was 
made  by  the  Standing  Orders  of  the  House  between 
private  and  local  Bills  on  one  side,  and  public  measures 
on  the  other.  .  For  public  measures  ministerial  responsi- 
bility is  imposed  on  the  government  in  power.  Private 
and  local  Bills  are  not  treated  any  longer  as  legislation, 
but  regarded  as  petitions  to  Parliament  for  special  privi- 
leges or  for  immunity  from  the  operation  of  the  general 
law,  which,  as  a  condition  to  receive  parliamentary  con- 
sideration, must  be  filed  before  the  session  opens  ;  all 
interests  adverse  to  or  affected  by  the  petition,  or  any 
clauses  of  the  Bill,  have  to  be  notified.  A  very  rigid  and 
formal  code  of  procedure  has  been  enacted  as  to  the 
manner  in  which  the  Bills  must  be  drafted,  the  scrutiny 
they  must  be  subjected  to  by  public  officers,  the  proof 
which  has  to  be  given  of  service  of  notice  on  interests 
affected  before  they  even  enter  the  parliamentary  doors. 
If  permitted  to  enter,  the  whole  expense  of  the  considera- 
tion of  the  Bill  is  borne  by  such  private  interests.  This 
is  fixed  by  a  schedule  of  charges  which  accompanies  the 
Bill  through  all  its  legislative  steps,  and  which  must  be 
discharged  and  paid  into  the  public  treasury  before  further 
steps  are  permitted  to  be  taken.  Counter-petitions  may 
be  filed  to  any  petition  for  legislation  ;  the  committees 
are  courts  which  may  examine  witnesses  and  call  for 
books  and  papers  ;  their  deliberations  are  aided  by  a 
competent  bar  of  parliamentary  practitioners  ;  the  plead- 
ings are,  in  so  far  as  compliance  with  the  standing  orders 


v  REFORM  OF  LEGISLATION       171 

as  to  form  and  notice  are  concerned,  all  disposed  of  before 
the  parliamentary  session  opens  ;  and  if  the  promoters  of 
the  Bill  have  failed  properly  to  protect  the  parties  whose 
interests  are  adverse  to  the  Bill,  they  are  mulcted  in  costs. 
The  parliamentary  committees  examine,  at  the  expense 
of  the  promoters,  experts  on  the  various  subject-matters 
of  the  Bills  ;  the  whole  work  of  legislation  and  considera- 
tion whether  the  matter  preliminarily  is  ripe  for  action 
is  done  at  the  expense  of  the  promoters,  the  nation  is  at 
no  charge  for  such  expense,  and  no  Bill  can  be  smuggled 
through  of  a  private  or  local  character  without  a  most 
careful  scrutiny  as  to  its  effects  on  other  interests  and 
the  public  weal,  and  sufficient  warning  is  given  to  the 
community  of  its  purpose.  The  adoption  of  such  a 
system  of  publicity,  notice,  and  trial,  would  dry  up  cor- 
ruption as  the  sun  destroys  the  vermin  hidden  under 
cover  of  a  stone  at  the  banks  of  a  brook,  when  the  stone 
is  turned  over.  The  traffic  in  legislation  now  carried  on 
in  the  State  of  New  York,  consisting  in  large  part  of 
guarantees  of  immunity  from  adverse  measures  —  im- 
munity, if  meritorious,  which  full  investigation  and 
publicity  can  give  more  effectually  than  the  protection 
of  the  party  chiefs — would  for  ever  end.  Close  the 
sources  of  food  upon  which  our  political  leviathans 
feed,  destroy  the  business  which  makes  them  prosper, 
and  you  have  ended  their  careers.  This  end  will  never 
be  brought  about  by  abuse  of  the  persons  who  now 
represent  the  system.  There  is  no  more  intelligence 
displayed  in  the  usual  mode  of  fighting  these  symptoms 
of  diseased  conditions  than  there  is  in  the  act  of  the 
anarchist  who  kills  a  Czar,  assassinates  an  Empress,  or 
explodes  a  palace.  There  will  inevitably  be  after  such 
removal  of  Czar,  assassination  of  Empress,  and  explosion 
of  a  palace,  some  other  ruler  of  the  same  character  or 
mansion  of  the  same  kind  to  take  the  place  vacated  or 
removed  by  the  insane  act  of  destruction. 

After  adverting  to  the  importance  of  securing 


172          LIFE  OF  SIMON  STERNE      CHAP. 

a  reform  of  methods  of  representation  for  the 
purpose  of  diminishing,  if  not  destroying,  the 
evils  of  boss  rule  in  cities,  Mr.  Sterne  went  on 
to  say  : — 

The  two  reforms  I  take  the  liberty  to  suggest  will 
produce  a  fundamental  change  and  peaceful  revolution  in 
the  class  that  comes  uppermost  in  political  life  in  our 
State  and  municipal  politics.  All  other  measures  that 
have  hitherto  been  suggested  or  devised  to  accomplish 
the  same  purpose  are  mere  palliatives.  Even  Civil 
Service  Reform,  of  which  you  are  one  of  the  foremost 
exponents  and  which  is  the  most  beneficial  spur  to 
administrative  reform  in  our  country,  does  not  and  will 
not  touch  the  marrow  of  our  political  evil.  Although 
not  generally  introduced,  great  progress  has  been  made 
in  the  adoption  of  the  principle  of  Civil  Service  Reform 
both  in  the  nation,  State,  and,  in  some  lesser  degree,  in 
municipalities.  It  is,  however,  painfully  manifest  that 
at  no  time  in  the  history  of  American  politics  have 
political  parties  been  so  well  organised,  so  regardless  and 
so  defiant  of  the  highest  public  opinion,  and  so  absolutely 
secure  in  their  domination.  We  must,  therefore,  look 
to  some  other  source  for  emancipation  from  a  tyranny 
which,  whilst  it  preserves  the  forms  of  freedom,  saps  its 
foundation. 

To  you,  whose  past  history  shows  us  that  you  have 
the  courage  necessary  for  the  occasion,  I  hope  may  be 
reserved  the  great  credit  of  bringing  forward  and  inaugu- 
rating measures  of  relief  to  the  community  which  will 
produce  permanent  instead  of  temporary  victory  over 
misrule  for  the  people  of  the  State  and  city  of  New 
York.  By  adopting  scientific  methods  in  our  legislative 
procedure  you  will  be  following  the  precedent,  step  by 
step,  of  the  parliamentary  reform  inaugurated  in  and 
carried  through  by  England.  In  adopting  minority 
representation,  you  will  be  following  the  precedent  of 
our  sister  republic,  Switzerland.  It  is  to  be  expected 


v  REFORM  OF  LEGISLATION        173 

that  the  same  beneficial  results  which  have  attended  the 
adoption  of  these  measures  in  the  countries  named,  will 
attend  their  adoption  in  this  State.  Our  community  is 
by  no  means  inherently  corrupt ;  its  commercial  credit 
is  sound,  and  its  manufacturing  industries  produce  as 
good  and  trustworthy  machinery  as  that  of  any  other 
people  upon  the  face  of  the  earth.  It  is  only  in  the 
political  field  that  we  are  behind  the  foremost  nations  of 
the  world  in  the  practical  application  of  our  advantages 
to  the  intricate  situation  created  by  modern  conditions, 
and  we  are  so  because  we  have  failed  to  make  the  progress 
in  the  machinery  of  politics  commensurate  with  that 
which  we  have  made  in  all  other  fields  of  human  activity. 
— Respectfully  yours,  SIMON  STERNE. 

To  this  Mr.  Roosevelt  made  the  following 
reply  :- 

OYSTER  BAY,  L.  I.,  December  24,  1898. 

My  dear  Mr.  Sterne — I  have  read  your  letter  with  the 
greatest  care.  As  regards  excessive  legislation,  I  am 
inclined  to  agree  with  you,  although  I  think  that  Biennial 
Sessions  would  also  be  of  some  service,  as  Judge  Earle 
believes.  I  am  by  no  means  clear  on  the  minority  repre- 
sentation plan.  We  had  an  approximation  toward  it  in 
New  York  once,  as  regards  aldermen,  and  it  worked 
badly.  I  should  regard  it  as  a  misfortune  if,  under  Mayor 
Van  Wyck,  we  had  an  anti-Tammany  majority  of  the 
aldermen  and  council,  and  this  majority  composed  of 
groups.  The  group  system  is  shown  by  the  experience 
of  France  and  Germany,  to  be  far  more  objectionable 
than  the  party  system,  in  the  long  run.  I  shall  have  to 
consider  this  group  business  very  carefully,  before  going 
into  any  measure  that  would  be  likely  to  promote  it. — 
With  great  regard  I  am,  very  sincerely  yours, 

THEODORE  ROOSEVELT. 


CHAPTER   VI 

THE    RELATIONS    BETWEEN    THE    RAILROADS 
AND    THE    STATE 

IT  was  beginning  to  be  recognised  thirty  years 
ago,  that  the  question  of  the  relations  between 
the  railroads  and  the  State  was  one  affecting  not 
less  vitally  the  health  of  the  body  politic  than  the 
material  interests  of  the  people.  To  the  influence 
of  no  one  man  was  the  perception  of  this  fact  so 
largely  due  as  to  that  of  Simon  Sterne.  In  March 
1874,  we  find  him  addressing  the  Joint  Committee 
of  the  Legislature  on  Railroads  in  favour  of  a  Bill 
providing  for  the  election  of  railroad  directors  by 
a  system  of  minority  representation,  and  for  the 
appointment  of  a  State  Railroad  Commission,  and 
already  showing  the  possession  of  so  thorough  a 
grasp  of  his  subject  as  to  suggest  the  devotion  to 
it  of  years  of  previous  thought  and  study.  It  is 
plain  that  the  subject  is  one  which  early  engaged 
his  attention.  Lecturing  in  1869,  he  quoted  the 
remark  of  Judge  Sharswood  of  Philadelphia  to  the 
effect  that  this  country  is  the  paradise  of  corpora- 
tions, and  added :  "  It  is  fast  becoming  more 
than  that,  it  will  soon  be  a  Government  by  cor- 

174 


CH.VI  RAILROADS  AND  THE  STATE  175 

porations.  Our  railway  companies,  which  origin- 
ally were  mere  creatures  of  our  legislative  bodies, 
are  now  their  masters."  He  quoted  the  opinion 
of  another  observer,  as  expressed  in  a  recent 
pamphlet,  to  this  effect  :  "  Moneyed  men,  asso- 
ciated under  various  titles,  have  gradually  bought 
up,  under  the  name  of  corporate  privileges,  the 
more  important  prerogatives  of  taxation  and 
administration.  A  generation  ago,  they  ap- 
proached the  leading  politicians  as  suppliants  ; 
now  they  hold  them  in  pay,  and  use  them  not 
only  to  extort  further  immunities,  but  generally  to 
control  the  entire  machinery  of  the  body  politic." 

It  was  a  fundamental  conviction  with  Mr. 
Sterne  that  our  existing  constitutional  restraints 
were  entirely  inadequate  to  deal  with  the  new 
power  which  had  been  called  into  being  by  the 
modern  organisation  of  capital.  He  pointed  out 
that  written  constitutions  can  protect  the  com- 
munity from  such  evils  only,  which  are,  at  the 
time  of  their  enactment,  experienced  or  imme- 
diately anticipated.  The  evils  which  lie  in  the 
remote  future,  it  were  vain  to  expect  any  com- 
munity to  erect  safeguards  against.  Against  the 
dangers  of  centralised  power  we  erected  the  barrier 
of  jealous  State  organisations,  sovereigns  in  all 
things  except  the  delegated  power  conferred  upon 
Congress,  a  Supreme  Court,  and  the  President. 
Against  the  sway  of  social  snobbishness  and  unjust 
discrimination,  we  erected  the  barrier  of  no  patents 
of  nobility ;  to  obviate  the  dangers  of  power 
exercised  by  great  wealth,  accumulated  in  families 
and  continued  therein,  we  abolished  in  all  our 


1 76          LIFE  OF  SIMON  STERNE      CHAP. 

States  the  right  of  primogeniture  ;  we  prohibited 
entail  ;  we  have  forbidden  perpetuities  ;  and  we 
limited  accumulations  by  will  to  a  life  in  being. 
We  have  substantially,  as  a  people,  said,  that  here 
by  the  general  polity  of  this  community  there 
shall  be  not  only  no  hereditary  nobility,  but  there 
shall  be  no  vast  accumulations  of  ancestral  wealth. 
We  have  said  that  death,  the  natural  limitation  of 
life,  shall  practically  be  the  natural  limitation  of 
accumulations,  acting  upon  the  wise  theory  that 
all  great  accumulations  of  wealth  tend,  at  best,  to 
a  social  tyranny,  to  class  interests,  and  to  the 
creation  of  a  body  of  men  in  the  community  with 
feelings,  pursuits,  and  purposes  distinct  from  the 
general  welfare  of  their  fellow-citizens  ;  giving  a 
power  to  purchase  immunity  from  the  just  con- 
sequences of  wrong-doing,  and  thus  creating  in 
fact,  if  not  in  name,  a  nobility. 

But,  as  Mr.  Sterne  went  on  to  show,  in  all  this 
we  forgot  that,  by  the  device  of  corporate  longevity 
and  perpetuity,  all  the  preventatives  we  have  ap- 
plied against  those  evils  of  entail,  perpetuities  and 
accumulations,  are  set  at  nought.  The  simple 
expedient  of  unlimited  corporate  existence,  cor- 
porate property,  corporate  accumulations,  and 
corporate  activity  serves  to  neutralise  precautions 
which  are  upon  the  statute-books  of  every  State, 
and  which  have  represented,  from  the  very  origin 
of  our  institutions,  our  settled  purpose  and  polity. 
A  natural  person  who,  through  entail,  acquires  vast 
landed  estates,  or,  through  perpetuities  and  accumu- 
lations, great  values  in  personal  property,  is  hedged 
in  and  circumscribed,  at  all  events  as  to  its  use,  by 


vi       RAILROADS  AND  THE  STATE    177 

personal  fear,  by  personal  honour,  and  by  a  spirit 
of  caste,  which  finds  expression  in  the  phrase  of 
noblesse  oblige.  But  the  artificial  person  known 
as  a  corporation  has  no  such  limitations  of  a  moral 
character  ;  it  uses  its  accumulations  or  its  property, 
which  may  be  the  results  of  hundreds  of  years  of 
earnings,  without  scruple,  without  conscience,  and, 
in  the  legal  phrase,  without  a  soul. 

These  figures  were  cited  to  show  the  sudden- 
ness with  which  railway  corporate  wealth  had 
increased.  In  1830  there  were  but  23  miles  of 
railway  in  operation  in  the  United  States ;  in  1840 
there  were  but  2818  ;  in  1850,  9021  ;  in  1860, 
30,635  ;  while  in  1876  there  were  77,470  miles, 
representing  a  gross  capital  somewhere  between 
five  and  six  thousand  millions  of  dollars.  This  vast 
accumulation  of  property,  representing  a  special 
interest,  was  not  foreseen  by  the  men  who  framed 
the  government  of  the  United  States.  As  Mr. 
Sterne  argued,  even  had  they  foreseen  it  they  could 
not  have  foreseen  that  it  would  be  controlled  by 
comparatively  few  men,  and  that  the  great  trunk 
Jines  would  have  a  constantly  growing  tendency  to 
consolidate  and  combine.  This  tendency  was  not 
anticipated  even  by  the  statesmen  who  witnessed 
the  birth  and  early  growth  of  these  enterprises,  else 
they  would  have  devised  some  plan  by  which,  in 
reference  to  corporations,  something  analogous 
should  take  place  in  the  way  of  a  dispersion  of 
influence  and  of  wealth  to  that  brought  about  by 
the  death  of  the  individual,  or  else  a  concentrated 
element  of  sovereignty  would  have  been  lodged 
somewhere  in  the  community  to  make  head  and 

N 


178          LIFE  OF  SIMON  STERNE       CHAP. 

front  against  so  formidable  a  growth  of  power  and 
influence.  It  was  admitted  that  the  settlement  of 
this  country  would  have  been  impossible  at  the  rate 
at  which  it  had  been  settled  ;  that  the  development 
of  its  wealth  could  not  have  taken  place  at  the  rate 
it  has  ;  that  our  community  could  not  have  sprung 
from  a  few  sparsely-populated  States  into  a  nation 
bearing  equal  rank  with  the  foremost  peoples  of 
the  earth,  within  the  short  period  of  forty  years,  if 
it  had  not  been  for  the  railway.  But  the  power 
that  made  us  great  had  become  tyrannous  ;  and 
Mr.  Sterne  addressed  himself  to  the  suggestion 
of  ways  by  which  the  abuse  of  this  power  might 
be  prevented  without  detriment  to  its  continued 
usefulness. 

It  was  because  of  the  fact  that  he  had  for  a 
number  of  years  made  a  special  study  of  the 
relations  existing  between  the  railroads  and  the 
public  with  reference  to  the  adoption  of  such 
equitable  legal  measures  as  would  protect  the 
public  interest,  and  because  he  had  repeatedly 
and  disinterestedly  urged  upon  the  legislative 
committees  of  the  State  the  passage  of  a  Railway 
Commissioners'  Bill,  that  he  was  asked  by  a 
number  of  representative  men  and  firms  of  the 
great  commercial  interests  of  the  city  to  deliver 
an  address  on  this  subject  on  April  19,  1878. 
In  the  course  of  that  address,  after  enumerating 
the  arguments  above  summarised,  he  entered  into 
an  examination  of  the  conditions  to  which  the 
commerce  of  New  York  was  subjected  by  the 
so-called  capitalisation  of  its  roads.  The  system 
of  railways  throughout  the  State  of  New  York 


VI 


RAILROADS  AND  THE  STATE     179 

was  built  anterior  to  any  system  throughout  the 
United  States.  They  were  built  at  the  cheapest 
possible  rate.  They  were  built  under  the  most 
advantageous  circumstances,  and  when  the  New 
York  Central  system  of  railroads  was  consolidated 
in  1869,  its  capital  stock  represented  a  par  of 
$28,000,000  ;  its  bonds  were  represented  by  a  par 
of  $12,000,000;  being  a  total  of  $40,000,000. 
The  Hudson  River  Railroad  at  that  time  had  a 
share  capital  of  $7,000,000,  and  a  bonded  debt 
of  $7,000,000,  or  $14,000,000  in  all — making 
the  combined  stock  capital  of  these  two  roads 
$35,000,000,  and  their  bonds  $19,000,000  or  a 
total  of  $54,000,000.  Mr.  Sterne  went  on  to 
recall  the  fact  that  1867,  1868,  and  1869  were  the 
years  of  the  highest  prices  of  every  commodity, 
land  included,  that  this  country  has  ever  seen.  It 
was  a  period  when  property  in  the  City  of  New 
York  had  risen  three  times  its  value,  when  every 
pound  of  iron  was  worth  $3*00  to  $1*00  as  com- 
pared with  the  price  of  ten  years  later,  when  every 
car  was  worth  $2*00  to  $1*00  by  the  same  standard 
of  comparison.  At  that  period  of  inflation  it  got 
into  the  heads  of  the  owners  of  the  New  York 
Central  Railroad  and  of  the  Hudson  River  Rail- 
road that  they  would  take  the  cheap  united  road 
of  these  corporations,  costing  $54,000,000,  and 
capitalise  it  upon  an  entirely  different  basis — that 
of  the  then  valuation  of  its  property  and  franchises. 
They  accordingly  declared  upon  the  Hudson 
River  Railroad  a  scrip  dividend  of  50  per  cent  ; 
and  at  the  time  of  consolidation  another  dividend 
of  85  per  cent  of  the  then  outstanding  stock  of 


i8o          LIFE  OF  SIMON  STERNE      CHAP. 


5,000,000,  making  an  issue  of  $13,000,000. 
And  the  New  York  Central,  in  1868,  made  a 
stock  dividend  of  80  per  cent,  being  $23,000,000, 
followed  by  one  of  27  per  cent,  making  $7,000,000 
additional  at  the  time  of  the  consolidation.  Thus 
these  combined  roads  were  capitalised  at  double  their 
value,  even  as  represented  by  stocks  and  bonds,  and  it 
is  a  violent  assumption  that  the  roads  cost  anything 
like  the  sum  which  the  stock  and  bonds  represented. 

The  consequence  was  that  the  law  of  1850, 
which  authorises  the  legislature  to  step  in  when- 
ever the  dividends  of  a  railway  rise  above  10  per 
cent  on  the  actual  cost  of  the  road,  and  declares 
what  shall  be  done  with  the  surplus,  was,  by  this 
process  of  capitalisation,  made  absolutely  nugatory. 
The  dividends  of  the  railway  between  1869  and 
1878  had  been,  on  the  actual  cost  of  the  road, 
something  above  16  per  cent — in  all  probability 
something  over  20  per  cent.  Because  these  roads 
were  capitalised  at  $80,000,000,  they  insisted  that 
they  must  pay  the  interest  on  that  sum,  when  it 
was  notorious  that  their  cost  did  not  represent 
$80,000,000  —  represented,  in  fact,  less  than 
$40,000,000,  the  other  $40,000,000  representing 
no  more  labour  than  it  took  to  print  the  scrip 
dividends.  Mr.  Sterne  contended  that  if  the  New 
York  Central  Railway,  holding,  as  it  does,  the 
cheapest  line  of  rail  to  the  West,  could,  by  a  com- 
bination, persist  in  getting  8  per  cent  on  its  watered 
capital,  it  imposed  a  tax  on  the  people  of  the  City 
and  State  of  New  York  precisely  in  the  same  way 
as  though  the  debts  of  the  counties  of  this  State 
and  the  debt  of  the  City  of  New  York  had  been 


vi       RAILROADS  AND  THE  STATE    181 

improperly  increased  $50,000,000.  He  illustrated 
the  injustice  done  to  the  City  of  New  York  by 
assuming  that  New  York,  in  1869,  had  first  built 
its  main  line  of  rail  at  the  enormously  inflated 
prices  then  existing.  In  such  a  case  New  York 
would  have  been  at  a  perpetual  disadvantage 
with  other  cities  that  had  built  their  railways  in 
cheaper  times.  Instead  of  this,  however,  New 
York  State  did  build  its  main  line  of  rail  during 
the  cheap  time,  from  1835  to  1850,  and  had  the 
additional  advantage  of  securing  for  its  through 
line  of  rail  an  enormously  large  local  traffic  con- 
tributed by  cities  previously  built  up  by  the  canal ; 
and  had,  further,  a  gradient  far  superior  to  that  of 
any  railway  to  the  west  in  any  of  our  sister  States. 
All  these  great  natural  and  special  advantages, 
which  should  have  enabled  the  City  of  New  York 
to  maintain  and  continue  the  start  in  commercial 
supremacy  which  the  canal  had  given  it,  and  which 
were  really  the  property  of  every  citizen,  were 
absorbed  by  this  capitalisation  for  the  benefit  of 
a  few  private  individuals. 

Another  illustration  which  Mr.  Sterne  was 
accustomed  to  cite  of  the  subserviency  of  the 
State  Legislature  to  railroad  influence  was  its 
placing  on  the  New  York  taxpayers  of  half  the 
cost  of  the  Fourth  Avenue  improvement.  When 
the  Harlem  Railroad  was  permitted  to  come  within 
the  limits  of  New  York  City  in  1833,  it  was  re- 
quired by  its  charter  to  make  a  contract  with  the 
City  of  New  York  as  to  the  conditions  under  which 
it  might  use  the  public  streets.  The  terms  which 
were  imposed  by  the  then  city  government  were 


1 82          LIFE  OF  SIMON  STERNE      CHAP. 

that  the  railway  might  have  the  use  of  Fourth 
Avenue  on  the  condition  that,  if  at  any  time  there- 
after, by  the  growth  of  the  population  of  the  City 
of  New  York,  the  use  of  the  surface  of  the  Avenue 
by  the  railroad  should  become  dangerous  to  the 
lives  and  detrimental  to  the  property  interests  of 
the  citizens,  then,  as  the  city  authorities  might 
direct,  the  railway  corporation  was  to  viaduct  or 
tunnel  the  Fourth  Avenue  from  its  then  depot  at 
the  City  Hall  to  the  Harlem  River  at  its  own 
expense  ;  and  from  time  to  time,  if  the  city  so 
directed,  the  railroad  was  to  remove,  in  whole  or 
in  part,  its  tracks  farther  up  town,  and  finally  go 
to  the  north  of  the  Harlem  River.  The  terms 
and  conditions  of  such  removal  or  the  building  of 
such  structure  were  left  wholly  optional  with  the 
city,  and  the  expense  wholly  upon  the  Harlem 
Railroad,  the  city  having  at  all  times  the  right  to 
determine  the  nature  and  character  of  the  occupa- 
tion which  should  thenceforth  be  permitted  to  exist 
upon  the  streets  of  New  York  by  that  corporation. 
No  other  compensation  was  asked  from  the  railway 
corporation  for  the  use  of  the  great  city  highway, 
and  no  other  compensation  was  paid. 

For  almost  forty  years  Fourth  Avenue  was 
occupied  by  the  railway,  and  then,  when  by  the 
growth  of  the  city  the  running  of  a  steam  surface 
railway  along  Fourth  Avenue  had  become  ex- 
tremely dangerous  to  the  lives  of  its  inhabitants, 
and  it  had  killed  many  people,  a  general  demand 
went  up  for  the  enforcement  of  the  contract  of 
1833.  Thereupon  the  Tweed  Board  of  Aldermen 
of  1871,  at  the  instance  of  the  Harlem  Railroad, 


vi       RAILROADS  AND  THE  STATE    i8j 

passed  an  ordinance  requiring  the  present  structure 
to  be  made  on  Fourth  Avenue,  and  imposed  one- 
half  of  the  cost  thereof,  in  defiance  of  the  contract  of 
J833>  upon  the  City  of  New  York.  But  popular 
sentiment,  largely  influenced  by  Mr.  Sterne's  public 
utterances,  was  too  much  for  even  Mayor  Hall,  and 
he  promptly  vetoed  the  ordinance,  which  the  Board 
did  not  attempt  to  pass  over  his  veto.  The  Legis- 
lature of  1872,  however,  notwithstanding  the  fact 
that  a  great  reform  movement  had  swept  over  the 
City  of  New  York  in  1871,  passed,  precisely  in 
terms  of  the  resolution  of  the  Tweed  Aldermen, 
the  Bill  known  as  the  Fourth  Avenue  Improvement 
Act,  imposing  half  the  expense  of  creating  a  great 
viaduct  and  roadway  for  the  Harlem  Railroad  and 
its  lessees,  the  New  York  Central  and  New  Haven 
roads,  upon  the  city.  In  other  words,  it  exoner- 
ated the  Harlem  Railroad  from  the  payment  of 
about  $4,000,000,  under  the  contract  of  1833, 
and  imposed  that  expense  upon  the  city. 

What  Mr.  Sterne  contended  for  in  his  advocacy 
of  a  railway  commission  like  that  which  already 
existed  in  Massachusetts,  was  to  enforce  absolute 
publicity  of,  and  uniformity  in,  accounts,  publicity 
of  contracts,  the  abolition  of  special  rates,  the  pro- 
hibition of  pooling,  and  a  tariff  of  rates  which, 
though  framed  by  the  railways,  shall  be  advertised 
in  advance,  and  not  permitted  to  be  increased  or 
lowered  except  upon  a  long  notice,  and  that  the 
tariff  shall  be  the  same  to  every  person  standing 
upon  the  same  plane.  He  was  willing  that  the 
railways  might  make,  if  they  pleased,  a  car-load  a 
unit  of  freight  charges,  and  thus  draw  the  line 


1 84          LIFE  OF  SIMON  STERNE      CHAP. 

between  wholesale  and  retail,  or  make  a  further 
distinction,  based  upon  the  unit  of  a  train  ship- 
ment. But  every  shipper  who  ships  by  the  car- 
load, or  ships  by  the  train-load,  or  ships  but  a 
pound,  should  be  placed  upon  precisely  the  same 
footing  as  every  other  shipper  who  ships  a  train  full, 
a  car  full,  or  a  pound.  In  other  words,  the  common 
carriers  should  not  be  permitted  to  build  up  one 
individual  and  pull  down  another,  or  build  up  one 
town  and  pull  down  another ;  and  there  should  be 
a  strict  limitation  of  the  rates  of  profit,  based  on 
an  actual,  not  nominal,  cost  of  road  which  should 
be  permitted  to  be  earned  in  the  way  of  tolls  upon 
a  public  highway.  The  Bill  which  he  drew  at  the 
request  of  the  Board  of  Trade  and  Transportation, 
and  which  had  at  that  time  been  for  four  years 
in  the  hands  of  Committees  of  the  Legislature, 
provided  for  the  organisation  of  a  Commission 
composed  of  three  members,  to  whom  the  reports 
previously  made  to  the  State  Engineer's  Depart- 
ment should  thereafter  be  made,  and  who,  instead 
of  being  compelled  to  publish  whatever  reports  the 
companies  chose  to  send,  could  ascertain  their 
truth  by  personal  investigation  ;  could  compel  the 
filing  of  all  contracts  with  railroad  companies,  with 
directors,  corporations,  and  individuals ;  could 
compel  the  report  of  all  delinquencies  on  the  part 
of  the  railways  in  meeting  the  just  expectations  of 
the  public,  keep  them  within  the  bounds  of  their 
chartered  rights  by  actions  at  law,  and  report  to 
the  legislature  the  results  of  their  investigations, 
with  suggestions  of  such  remedial  measures  as  they 
might  deem  required.  He  held  that  publicity  is 


vi       RAILROADS  AND  THE  STATE     185 

the  one  great  remedy  in  this  country  against 
almost  all  its  ills,  and  that  though  not  a  very 
satisfactory  nor  a  very  quick  remedy,  it  was  one 
which  involved  the  least  danger  in  its  adoption. 

This  line  of  treatment  obviously  suggested  the 
query,  What  control  could  be  exercised  by  a  New 
York  Railroad  Commission  over  the  railroads 
of  other  States  ;  and  in  default  of  such  control, 
how  discriminations  by  these  railroads  against  the 
commerce  of  New  York  were  to  be  prevented  ? 
This  brought  up  the  larger  question,  which  he 
admitted  he  would  rather  suggest  than  attempt  to 
solve.  But  he  left  no  room  to  doubt  that  he  had 
already  given  careful  consideration  to  the  plan  of 
railroad  regulation  which,  some  years  later,  matured 
into  the  Interstate  Commerce  Commission.  He 
said  that  if  the  transportation  monopoly  of  this 
country  had  become  too  powerful  for  the  control 
of  a  single  State,  and  held  each  one  in  bondage, 
the  only  remedy  might  be,  as  to  railways,  to  wipe 
out  State  lines,  to  enlarge  by  implication  the  mean- 
ing and  scope  of  the  words  "  regulation  of  Com- 
merce "  in  the  constitution  of  the  United  States, 
and  to  obtain  control  of  our  great  railways  through 
national  legislation.  The  cry  that  this  is  central- 
isation did  not  frighten  him,  because,  whether 
centralisation  is  objectionable  or  not,  depends  on 
whether  it  is  good  or  bad,  and  whether  it  super- 
sedes a  better  or  a  worse  system.  He  had  long 
ago  felt  that  the  railway  and  the  telegraph  had 
made  this  country  one  nation,  and  that  State  lines 
were,  in  many  instances,  as  much  hindrances  as 
they  are  promoters  of  true  liberty.  Every  sug- 


1 86          LIFE  OF  SIMON  STERNE       CHAP. 

gestion  of  governmental  control  of  the  railway 
interest  was  looked  upon  with  disfavour  because 
when  our  western  farmers  felt  the  pressure  of  rail- 
way mismanagement,  or  the  pressure  of  taxation 
resulting  from  bonding  their  counties  by  the 
railway  interest,  they  struck  at  it  boldly  but  blindly, 
by  enacting  what  is  known  as  Granger  legislation — 
legislation  which,  as  Mr.  Fink  said,  attempted 
arbitrarily  to  "  guess  at  freights,"  and  guessed 
wrongly.  It  was  doubly  unfortunate  that  the 
Western  States  should  have  attempted  this  inter- 
ference with  the  railways  on  the  eve  of  a  period  of 
financial  depression  which  was  general  throughout 
the  United  States,  and,  indeed,  throughout  the 
world.  This  depression  affected  the  railway 
interest  precisely  as  it  did  other  interests.  Yet 
the  railways  have  not  hesitated  falsely  to  charge 
that  the  depression  was  mainly  due  to  the  Potter 
legislation  and  that  this  was  mainly  responsible  for 
the  misfortunes  which  had  overtaken  the  country 
as  the  result  of  general,  commercial,  and  financial 
distress.  Mr.  Sterne  argued  that  no  danger  could 
come  from  such  a  species  of  control  as  he  and 
those  working  with  him  suggested,  because  of  the 
success  which  had  attended  the  appointment  of  a 
very  powerful  railway  Commission  in  conservative 
England,  and  had  also  attended  the  work  of  the 
Commission  appointed  by  Massachusetts. 

The  Assembly  Special  Committee  on  Railroads, 
usually  known  as  the  Hepburn  Committee,  which 
honestly  and  seriously  addressed  itself,  as  none  of 
its  predecessors  had  done,  to  providing  remedies 
for  evils,  which  the  entire  mercantile  community 


vi       RAILROADS  AND  THE  STATE     187 

of  New  York  was  at  one  with  Mr.  Sterne  in 
condemning,  was  greatly  indebted  to  him  for 
a  luminous  exposition  of  the  conditions  of  the 
problem  with  which  it  had  to  deal.  He  appeared 
before  the  Committee  as  counsel  for  the  Chamber 
of  Commerce  and  Board  of  Trade  and  Transporta- 
tion, and  his  opening  statement  contained  a  very 
instructive  review  of  the  development  of  the  rail- 
road legislation  of  the  State.  He  showed  that  in 
the  early  stages  of  these  new  roadways  they  were 
regarded  only  as  improved  highways  ;  and  it  was 
in  contemplation  by  the  legislative  bodies  which 
chartered  them,  as  well  as  by  those  who  received 
the  franchise  for  their  operation,  that  the  province 
of  the  company  owning  the  road  would  be  to  build 
and  construct  this  highway  in  the  same  manner  as 
it  is  the  province  of  a  canal  company  to  construct 
a  canal;  and  that  although  they  might  supply  motive 
power,  the  cars  and  the  business  of  transportation 
that  was  to  be  done  along  this  highway  should  be 
in  the  hands  of  private  individuals.  The  early 
charters,  both  in  England  and  in  this  country, 
contained  provisions  analogous  to  those  contained 
in  the  Canal  Companies'  Acts,  by  which  persons  and 
corporations,  other  than  the  company  owning  the 
line,  were  permitted  to  run  their  own  cars  over  it, 
on  payment  of  certain  tolls  for  motive  power.  All 
the  early  Acts  contained  carefully  prepared  schedules 
of  both  freight  and  passenger  charges  down  to  the 
minutest  details.  Thus,  the  fixing  and  regulating 
of  freight,  as  well  as  passenger  charges,  were  not 
only  not  considered  confiscation  or  invasions  of  the 
right  of  property,  but  were  necessary  deductions 


1 88          LIFE  OF  SIMON  STERNE       CHAP. 

from  the  fact  that  the  railways  were  regarded  as 
improved  public  highways,  and  that  such  conditions 
were,  therefore,  essentially  proper  and  inseparable 
from  the  concessions  when  made. 

Mr.  Sterne  made  the  following  highly  suggestive 
quotation  from  a  report  of  a  special  committee  of 
the  legislature  in  1843,  ^e  language  of  which  is  no 
less  relevant  to  the  conditions  existing  to-day  than 
it  was  to  those  of  twenty-five  or  sixty  years  ago  : — 

Combinations  and  confederacy  of  any  magnitude  and 
extent,  even  among  natural  persons,  are  looked  upon 
with  suspicion,  and  except  some  good  reason,  not  incon- 
sistent with  the  public  good,  and  based  upon  necessity, 
is  apparent  for  such  combinations  and  confederacies,  public 
sentiment  will  not  tolerate  them  ;  and  every  such  com- 
bination and  confederacy  by  which  the  rights  of  others 
are  to  be  and  may  be  injuriously  affected,  is  a  mis- 
demeanor, and  punishable  as  such  ;  and  the  committee 
can  see  nothing  which  should  entitle  incorporated  com- 
panies to  greater  confidence  from  the  public  or  milder 
treatment,  when  they,  by  their  officers  and  agents,  com- 
bine for  purposes  which  may,  and  to  some  extent  must, 
necessarily  affect  injuriously  the  public  interest  as  well  as 
the  rights  of  individuals. 

The  various  links  of  the  New  York  Central 
system,  and  the  New  York  and  Erie  Railway, 
were  first  prohibited  by  law  from  carrying  freight 
in  competition  with  the  canal,  and  were  subse- 
quently, by  modification  of  their  charters,  com- 
pelled to  pay  toll  to  the  canal  fund  equivalent  to 
what  the  goods,  had  they  been  carried  on  the 
canal,  would  have  paid  to  it.  In  process  of  time, 
however,  this  restriction  was  first  modified,  and  in 
1851,  was  removed,  the  railways  being  left  free  to 


vi       RAILROADS  AND  THE  STATE     189 

charge  on  freight  what  they  saw  fit.  The  passenger 
traffic  was,  however,  subjected  from  the  outset  to 
strict  regulations  ;  and  the  reason  why  the  freight 
traffic  was  not  so  subjected  was  because  in  the 
infancy  of  these  enterprises,  it  was  not  supposed 
that  the  freight  traffic  would  be  of  any  value  to 
railway  corporations,  but  that  if  they  carried 
freight  at  all,  it  would  be  confined  to  mere 
passenger  baggage  or  articles  of  luxury  which 
could  bear  the  expensive  tolls  that  it  was  supposed 
railway  companies  would  be  compelled  to  charge 
as  transportation  rates.  It  would  have  been 
regarded  as  the  wildest  sort  of  visionary  fore- 
casting for  any  one  to  have  suggested  that  the 
time  would  come  when  all  but  a  small  fraction 
of  the  eastbound  freight  would  be  transported 
by  rail. 

Down  to  1848  every  railway  charter  was  a 
special  concession  derived  from  the  legislature  in 
each  particular  case,  and  before  the  power  of 
eminent  domain  could  be  exercised,  the  legislature 
had  to  be  satisfied  that  the  enterprise  was  one  of 
public  utility.  The  constitution  of  1846  required 
the  Legislature  to  pass  general  laws,  under  which 
corporations  should  be  formed,  and  as  the  special 
railway  legislation  was  a  source  of  much  corruption, 
it  was  deemed  advisable  to  enact  under  this  con- 
stitutional direction  a  General  Railway  Act.  In 
1848  an  Act  was  passed  under  which  railway 
corporations  could  be  organised,  but  which  still 
provided  that,  before  the  companies  could  exercise 
the  right  of  eminent  domain,  they  should  obtain  a 
special  grant  of  authority  to  that  effect  from  the 


1 90          LIFE  OF  SIMON  STERNE      CHAP. 

Legislature.  This  law  remained  on  the  statute 
book  just  two  years,  when  a  new  law  was  passed 
to  take  its  place — the  General  Railway  Act  of 
1850 — which,  with  its  amendments,  substantially 
is  to-day  the  general  law  under  which  railways  of 
this  State  have  since  been  built,  and  under  which 
all  have  been  operated.  State  supervision  and 
control  as  to  passenger  traffic  were  maintained  by 
Section  28  of  this  Act,  the  amount  to  be  charged 
therefor  was  not  to  exceed  three  cents  per  mile, 
but  this  law  left  the  railways  without  control  as 
to  the  charges  to  be  made  on  freight  which  was 
rapidly  growing  into  the  more  valuable  and  more 
important  branch  of  their  traffic.  This  was  done 
under  the  impression  that  the  law  of  competition 
which  had  operated  so  efficiently  in  the  supply  of 
almost  all  commodities  and  services,  and  which 
had  in  all  other  matters  produced  the  most  bene- 
ficial results,  would  in  the  case  of  the  railways  be 
also  operative  to  secure  the  lowest  possible  rates  of 
freight  and  the  highest  standard  of  public  service. 
It  was  not  foreseen  that  the  natural  law  of  com- 
petition cannot  apply  to  such  a  case,  unless  railways 
were  multiplied  to  such  a  degree  that  they  would 
be  too  numerous  to  combine,  since  possible 
combination  excludes  competition.  The  fact  was 
also  lost  sight  of  that  competition  could  come  only 
from  an  expenditure  of  so  vast  a  sum  of  money 
that  its  investment  was  not  likely  to  be  made. 
The  economic  law  that  a  service,  which  must  be 
consumed  on  the  spot,  and  the  supply  of  which 
can  be  indefinitely  extended  by  the  same  person  or 
class  of  persons,  excludes  competition,  was  also  lost 


vi       RAILROADS  AND  THE  STATE     191 

sight  of  or  was  not  known.  Hence,  at  the  end  of 
almost  thirty  years,  from  the  passage  of  the  general 
railroad  law,  the  people  of  the  State  were  confronted 
with  a  railway  problem  of  the  first  magnitude, 
involving  not  only  one,  but  almost  all  questions 
with  which  other  people  had  to  deal  in  relation  to 
these  corporations. 

The  growth  of  the  railway  system  of  the  State 
in  those  thirty  years  may  be  inferred  from  the  fact 
that  in  1845  New  York  had  only  721  miles  of 
rail;  in  1876,  5550.  In  1845  ^e  capital  repre- 
sented by  the  New  York  railways  was  $i  8,000,000. 
The  capital,  stock,  and  debts  in  1879  were  about 
$500,000,000  —  representing  an  average  cost  of 
about  $80,000  per  mile.  The  aggregate  gross 
earnings  of  the  railroads  in  New  York  State  in 
1845  were  about  $2,000,000  ;  their  gross  receipts 
in  1875  were  about  $70,000,000,  and  in  1879 
they  were  very  close  upon  $95,000,000.  It  was 
Mr.  Sterne's  contention  that  this  vast  power  had 
been  permitted  to  grow  up  and  overshadow  almost 
every  other  interest  in  society,  without  responsi- 
bility for  its  management  to  any  one,  except, 
perhaps,  a  very  illusory  responsibility  to  its  stock- 
holders. The  State  had  ceased  to  control  it ; 
the  control  of  the  stockholders  has  been  practi- 
cally evaded.  It  constituted  itself  an  imperium  in 
imperio,  overshadowing  and  overwhelming  in  its 
character ;  permeating  every  county  and  every 
town  in  the  State  ;  employing  the  best  legal  and 
administrative  talent  ;  exercising  a  constant  in- 
fluence on  elections  ;  often  determining  the  com- 
position of  the  Committees  of  the  Legislature,  and, 


192          LIFE  OF  SIMON  STERNE      CHAP. 

at  critical  moments,  dictating  the  personnel  of  the 
State  Government.  When  in  1850  there  were  in 
the  State  of  New  York,  with  a  mileage  of  1230 
miles,  twenty-six  operated  railways,  the  average 
number  of  miles  controlled  by  each  company  was 
about  45  miles  ;  but,  thirty  years  later,  with  almost 
6000  miles  of  railroad,  the  number  of  roads  had 
increased  to  but  fifty,  and  half  this  mileage  and 
half  these  companies  were  controlled  by  the  Erie, 
the  Delaware  and  Hudson,  and  the  New  York 
Central  Railroads.  Split  up  as  the  interest  was,  in 
its  early  years,  without  a  comprehensive  plan  of 
operations,  without  a  systematic  method  of  con- 
ducting its  affairs,  there  was  scarcely  any  danger 
to  be  apprehended  from  our  then  railway  system. 
But  amalgamation  is  one  of  the  laws  of  railway 
being,  and  this  had  already  proceeded  in  New 
York  with  gigantic  strides.  The  smaller  railways, 
anterior  to  1850,  wherever  they  competed,  were 
constantly  at  war,  and  low  local  rates  were  the 
consequence.  With  the  era  of  large  corporations, 
controlling  thousands  instead  of  hundreds  of  miles, 
the  waste  and  destruction  incident  to  a  war  of 
rates  were  so  great  that  alliances,  defensive  and 
offensive,  were  entered  into  under  the  form  of 
freight  contracts,  culminating  in  a  great  pooling 
system. 

Hence,  at  the  date  of  Mr.  Sterne's  address, 
even  the  pretence  of  competition  was  abandoned 
between  the  great  railway  corporations  of  the 
country.  This  was  largely  due  to  the  discovery 
made  by  the  railway  corporations  in  regard  to  the 
limits  to  which  a  war  of  rates  could  safely  be 


vi       RAILROADS  AND  THE  STATE     193 

carried  on  against  each  other.  Disastrous  experi- 
ence had  demonstrated  the  fact  that  this  must  stop 
short  of  driving  a  rival  line  into  insolvency,  since 
an  insolvent  road,  relieved  from  any  present  hope 
of  dividends  on  stock  or  interest  on  bonds,  carries 
freight  for  anything  that  will  yield  an  excess  over 
operating  expenses.  Therefore  the  New  York 
Central  enters  into  a  combination  with  the  Balti- 
more and  Ohio  and  Pennsylvania  Roads  to  sustain 
these  lines  against  its  own  natural  advantages,  and 
those  of  New  York  Harbour  to  prevent  its  rivals 
from  unloading  themselves  by  insolvency  of  the 
responsibility  of  paying  dividends  and  interest  on 
bonds,  because  the  moment  they  become  insolvent 
they  are,  by  reason  of  that  fact,  more  formidable 
competitors  than  before.  If,  on  the  one  hand, 
making  railways  insolvent  by  competition  would 
compel  them  to  take  up  their  rails  and  retire  from 
business,  and  if,  on  the  other  hand,  so  many  lines 
could  be  competitively  built  to  distributing  points 
that  their  managers  could  not  combine  on  the  rate 
of  tolls,  the  law  of  competition  would  apply  in 
railroading  as  it  does  in  most  other  forms  of 
business.  But  as  none  of  the  results  accomplished 
by  competition  in  the  ordinary  vocations  of  life 
takes  place  in  the  case  of  railroads,  it  is  clear  that 
to  attempt  to  apply  the  general  law  of  competi- 
tion to  phenomena  so  exceptional  would  be,  to  use 
Mr.  Sterne's  phrase,  an  exhibition  of  doctrinaire 
pig-headedness. 

He  was  quite  willing  to  concede  that  the  rail- 
way system  had  conferred  enormous  benefits  upon 
society,  of  which  the  State  of  New  York  had 

o 


194          LIFE  OF  SIMON  STERNE      CHAP. 

enjoyed  its  full  share  ;  but  he  insisted  that  in  our 
gratitude  to  the  railway  system  for  the  benefits  that 
it  has  conferred,  we  must  not  overlook  the  short- 
comings of  the  men  who  manage  railways,  and 
who,  as  he  claimed,  prevented  the  commercial  com- 
munity from  reaping  as  large  a  benefit  therefrom 
as  they  were  entitled  to  enjoy.  Whatever  might 
be  the  disposition  to  praise  those  great  minds  to 
whom  we  are  indebted  for  the  steam  engine  and 
the  application  thereof  to  locomotive  purposes, 
Mr.  Sterne  insisted  that  we  must  not  confound 
Vanderbilt  with  Watt,  or  Jay  Gould  with  Stephen- 
son,  because  at  the  time  the  men  who  derive  their 
splendid  incomes  from  railways  entered  the  busi- 
ness, these  enterprises  had  for  a  generation  proved 
assured  successes,  and  there  was  nothing  in  trans- 
portation by  rail  of  a  problematical  or  doubtful 
character. 

He  proposed  to  show  the  Committee  that  the 
diversion  of  trade  from  New  York  and  the  growth 
of  rival  cities  was  mainly  due  to  the  peculiarities  of 
management  of  our  railway  lines,  by  which  through 
rates  to  and  from  Liverpool  and  Western  centres 
are  almost  as  low  as  the  ocean  freights  alone  would 
be  from  New  York  to  Liverpool  or  Liverpool  to 
New  York.  He  further  proposed  to  prove  that 
the  railway  companies  of  the  State  had  shamelessly 
evaded  the  provisions  as  to  ten  per  cent  dividends, 
in  the  watering  of  their  stock  and  the  issuing  of 
their  bonds.  They  had,  indeed,  capitalised  the 
future  prosperity  of  the  community,  capitalised  the 
supposed  value  of  their  franchises,  capitalised  the 
non-interference  of  the  legislature  and  the  neglect 


vi       RAILROADS  AND  THE  STATE     195 

of  duty  on  the  part  of  the  State,  so  as  to  make  it 
almost  impossible  to  tell  what  the  cost  of  railway 
construction  and  equipment  has  been  ;  and  how 
much,  from  time  to  time,  of  the  amount  which  has 
gone  upon  the  books  into  the  construction  accounts 
had  actually  been  invested  in  the  road.  He  also 
proposed  to  show  that  the  whole  system  of  railway 
accounts  was  delusive  in  the  extreme,  and  was  a  sys- 
tem by  which  both  the  public  and  the  stockholders 
were  grossly  and  egregiously  misled.  Further, 
he  made  it  part  of  the  same  indictment  that  these 
common  carriers  dealt  unequally  with  localities, 
and  individuals  in  the  same  localities,  making  by 
special  contracts  and  special  rates,  unjust  and 
special  rates,  unjust  and  oppressive  distinctions, 
preferring  one  man  to  another,  in  a  particular 
town,  one  locality  to  another,  and  all  this  quite 
independent  of  the  commercial  considerations  of 
wholesale  and  retail,  and  independent  of  the  con- 
siderations of  mileage,  volume  of  traffic,  or  facility 
of  handling  at  termini.  Another  point  made  was 
that  the  interior  of  the  State  is  discriminated 
against  in  favour  of  citizens  of  far  Western  States 
at  most  distant  points,  and  that  such  discrimina- 
tion had  resulted  in  the  decay,  if  not  the  destruc- 
tion, of  the  agricultural  interests  of  New  York. 
Still  another  was  that  wherever  the  monopoly 
power  exists  without  check,  and  points  not  touched 
by  any  competitive  railways  are  to  be  found,  the 
tariff  rate  is  grossly  unjust  and  oppressive.  Even 
at  such  points  it  was  charged  that  special  rates  are 
made  of  an  arbitrary  character,  preferring  one  man 
in  the  same  community  to  others,  exempting  one 


196          LIFE  OF  SIMON  STERNE      CHAP. 

man  from  the  general  tyranny,  and  adding  the 
burden  of  his  exemption  to  the  load  already 
carried  by  his  neighbours.  Moreover,  many  of 
these  rates  were  made  on  contracts,  by  which  the 
shipper  agreed  not  to  use  the  canal,  thus  making 
a  discrimination  by  special  contract  against  the 
property  of  the  State,  for  the  protection  of  which 
the  provision  was  inserted  in  all  the  earlier  railway 
charters  that  these  same  corporations  should  not 
carry  freight  which  might  be  carried  upon  the 
canal,  or  that  if  they  did  carry  it,  that  they  should 
pay  a  toll  to  the  State  equivalent  to  that  which  the 
canal  would  have  earned  by  such  carriage. 

All  this  had  a  very  practical  relation  to  the  con- 
ditions of  railroad  business  as  they  affected  the  com- 
merce of  New  York  twenty-three  years  ago,  and  is 
not  without  relevancy  to  the  conditions  of  to-day. 
The  character  of  the  legislation  which  it  inspired 
has  been  already  explained.  Mr.  Sterne  had  cor- 
rectly apprehended  the  character  of  the  abuses 
of  railway  management,  for  which  the  Interstate 
Commerce  Law  was  expected  to  provide  a  remedy. 
The  conclusions  reached  by  the  United  States 
Senate  Committee,  of  whose  investigations  that 
law  was  the  product,  were  very  much  on  the  lines 
above  indicated,  and  were  substantially  identical 
with  the  general  tenor  of  the  conclusions  which 
Mr.  Sterne  had  reached  years  before.  In  an 
article  on  "  Monopolies,"  prepared  for  Lalor's 
Cyclopedia  of  Political  Science,  Political  Economy, 
and  Political  History  of  the  United  States,  he  gives, 
in  a  very  brief  space,  a  compendious  statement 
of  the  railroad  problem,  which,  for  clearness  and 


vi       RAILROADS  AND  THE  STATE     197 

comprehensiveness,  it  would  be  difficult  to  match 
in  the  copious  literature  of  this  subject.  In  this 
article  Mr.  Sterne  points  out  that  railway  enter- 
prises have,  from  their  very  nature,  a  tendency  to 
become  monopolies.  The  proportion  of  fixed 
charges  to  mere  operating  expenses,  dependent 
upon  the  rate  of  business,  is  so  great  in  the  rail- 
way that  it  may  almost  indefinitely  increase  its 
business  without  any  proportional  increase  of  ex- 
penses after  it  has  once  been  constructed.  The 
existing  line  can,  therefore,  almost  always  outbid 
a  competitor  for  business  as  to  the  rate  at  which  it 
sees  fit  to  do  it.  As  the  service  is  consumed  at 
the  spot  where  it  is  created,  and  is  rendered  with- 
out a  relative  increase  of  expenditure  for  the 
purpose  of  rendering  it,  there  is,  in  the  nature  of 
things,  a  monopoly  created,  which  demands  the 
constant  exercise  of  legal  restraint. 

The  article  goes  on  to  show  that  although 
railways  may  be  increased  in  number  from  given 
points,  yet  even  when  an  active  competition  for  a 
time  prevails,  the  number  of  those  railways  will 
necessarily  be  so  few  that  their  interest  to  combine, 
as  against  their  tendency  to  compete,  will  outweigh 
competition,  and  combination  become  the  general 
result  of  almost  all  competitive  railway  building. 
After  combination  has  been  effected,  the  com- 
munity is  confronted  with  the  fact  that  its  service 
is  no  cheaper  than  it  was  before  ;  that  its  business 
is  done  by  two  or  three  lines  instead  of  one  which 
previously  rendered  the  service  ;  that  one  line 
would  have  sufficed  to  do  the  whole  business,  and 
that  there  is  a  loss  of  capital  to  the  community 


198          LIFE  OF  SIMON  STERNE      CHAP. 

represented  by  the  building  of  the  second  or  third 
line.  This  capital  is  lost  because  the  community 
has  failed  to  do  its  duty  in  limiting  the  charges 
of  these  corporations  which  are  enabled  to  earn 
extravagant  rates  of  profit  upon  a  limited  business, 
by  the  growth  of  the  community.  So  large  is  the 
income  as  compared  with  the  investment  that  new 
capital  is  tempted  into  the  same  field  for  the 
purpose  of  dividing  the  business  with  the  existing 
line,  not  because  there  is  any  necessity  for  the  rival 
line,  or  because  of  the  incompetency  of  the  existing 
line '  to  perform  the  work,  but  simply  because  of 
the  profit  made  by  the  existing  line  upon  its 
traffic.  Thus,  upon  a  given  amount  of  business 
yielding,  on  an  expenditure  of  $10,000,000, 
a  million  and  a  half  a  year  profit,  it  will  pay 
capitalists  a  fair  rate  of  interest  to  expend  another 
$10,000,000  for  the  purpose  of  taking  $750,000 
net  profit  out  of  the  existing  line.  Mr.  Sterne 
argued  that  if  the  community  were  to  reduce  the 
profit  of  the  existing  line  by  legal  enactments, 
$10,000,000  would  not  be  invested  in  the  build- 
ing of  a  second  line,  but  would  be  available 
for  other  purposes.  No  service  is  done  to  the 
community  by  the  building  of  the  new  line 
between  two  given  points,  if  prices  remain  the 
same  to  shippers  and  the  business  is  subsequently 
divided  between  the  two  roads,  but  the  ten 
millions  of  capital  are  diverted  from  other  employ- 
ments. If  in  consequence  of  competition  between 
the  two  lines  the  price  of  carriage  is  reduced,  the 
community  is  the  gainer  to  the  extent  of  such 
reduction  ;  but  if,  after  the  new  line  is  built,  a 


vi       RAILROADS  AND  THE  STATE     199 

combination  is  made  between  the  two  roads  to 
maintain  prices,  so  that  both  may  earn  dividends 
upon  their  capital,  the  community  has  lost  for 
other  purposes  the  ten  millions  unnecessarily 
invested.  At  the  time  this  article  was  published 
(1883)  the  illustration  above  given  had  ceased  to 
be  a  hypothetical  one,  and  rested  on  facts  within 
the  knowledge  of  every  one  who  had  observed  the 
course  of  railway  construction,  railway  wars,  and 
railway  combinations  in  the  United  States.  If  it 
were  sought  to  qualify  the  conclusions  reached  by 
insisting  that  a  competing  line  does  touch,  at 
intermediate  points,  territory  which  is  not  touched 
by  the  previously  existing  line,  and  thus  incidental 
benefits  are  conferred,  these  benefits  by  no  means 
outweigh  the  enormous  waste  of  capital  which 
has  been  occasioned  by  railway  construction  for 
the  mere  purpose  of  dividing  business,  with 
combination  as  to  rates. 

Two  or  three  years  before  the  widespread 
bankruptcy  in  1893  illustrated  the  correctness  of 
Mr.  Sterne's  inductions,  he  had  pointed  out,  with 
his  accustomed  clearness,  the  way  in  which  things 
were  drifting.  In  an  article  in  the  Forum  of 
September  1890,  he  starts  out  with  the  declara- 
tion that  the  wastefulness  of  both  capital  and 
energy,  and  the  unnecessary  costliness  of  accom- 
plishing very  simple  ends  are  among  the  most 
prominent  of  the  manifestations  observed  in  tracing 
the  causes  and  consequences  of  the  insolvency  of 
railways  in  the  United  States.  Between  1823  and 
1850,  the  denser  centres  of  population  east  of  the 
Mississippi  River  were  connected  by  rail  under  a 


200          LIFE  OF  SIMON  STERNE      CHAP. 

financial  system  which  provided  for  primary  con- 
struction by  actual  subscriptions  and  contributions 
in  cash  to  capital  stock.  Since  1850  the  building 
of  lines  at  first  in  part  and  finally  almost  ex- 
clusively, has  been  carried  on  upon  the  basis  of 
bonded  indebtedness  for  primary  construction.  It 
is  approximately  correct  to  say  that  the  first 
mortgage  bonds,  on  the  many  lines  of  rail  west  of 
the  Mississippi,  represent  in  par  value  the  average 
cash  investment  which  originally  brought  these 
roads  into  existence,  and  that  the  junior  mortgages 
and  stock  represent  in  part  a  capitalisation  of  the 
anticipated  future  development  of  the  country  and 
of  the  profits  of  the  projectors.  It  can  also  be 
said  that,  as  the  actual  market  value  which  these 
junior  liens  and  stock  realised  was  often  but  a 
small  percentage  of  their  par  value,  the  profits  of 
the  projectors  were,  in  many  instances,  no  more 
than  a  fair  return  upon  the  risks  of  the  enterprise. 
As  Mr.  Sterne  goes  on  to  show,  while  the  road 
is  in  the  hands  of  the  original  projectors  and  con- 
structors, the  amount  of  the  capitalisation  and  its 
subdivision  are  matters  of  no  consequence.  When, 
however,  through  sales  and  transfers  of  the 
securities  to  third  parties,  the  management  of  the 
road  passes  exclusively  under  the  control  of  the 
holders  of  the  stock,  the  effect  of  the  capitalisation 
which  makes  its  par  value  out  of  all  proportion  to 
any  representative  value  originally  invested  in  the 
enterprise,  is  soon  felt.  The  result  has  been  that, 
with  the  exception  of  the  trans-continental  lines 
subsidised  by  Congress,  almost  all  the  railways 
constructed,  and  operated  beyond  the  Mississippi 


vi       RAILROADS  AND  THE  STATE    201 

River,  had  for  over  a  quarter  of  a  century  been 
managed  by  the  holders  of  securities  which  re- 
presented little  or  no  value  in  actual  construction, 
and  upon  which  the  railway  could  not  pay  interest 
or  dividends.  Thus  the  seeds  of  that  insolvency 
were  planted  which,  beginning  with  1873,  had 
produced  a  bountiful  crop  of  defaulted  railway 
securities. 

Railway  construction  is  generally  undertaken 
when  there  is  considerable  activity  in  the  money 
market,  and  when  capital  commands  a  high  rate 
of  interest.  While  the  line  is  under  construction 
interest  is  generally  paid  out  of  money  raised  for 
that  very  purpose.  The  capital  which  should  go 
into  the  road  is  thereby  diminished,  but  the  credit 
of  the  company  during  building  is  maintained. 
After  the  railway  is  nominally  finished,  and  par- 
ticularly during  the  first  two  or  three  years  of 
its  operation,  when  many  parts  of  it  should  be 
renewed,  and  when  its  roadbed  and  rolling  stock 
should  receive  the  benefit  of  a  large  proportion 
of  its  earnings,  the  road,  in  consequence  of  the 
necessity  of  meeting  the  requirements  of  its 
creditors,  is  pinched  and  starved  as  to  necessary 
betterment.  Thus,  at  the  end  of  a  few  years,  the 
deterioration  of  the  line  is  such  that  there  is  little 
earning  capacity  left,  and  this  condition  continues 
until  the  volume  of  the  floating  debt  is  so  great 
that  the  road  must  pass  into  the  hands  of  a 
receiver,  or  be  dismembered  by  sales  under  judg- 
ments. When  accumulating  debt  does  not  produce 
the  catastrophe,  other  causes  do.  Legislative  in- 
quiries within  the  States  through  which  the  line 


202          LIFE  OF  SIMON  STERNE      CHAP. 

is  operated,  and  mandatory  demands  on  the  part 
of  the  State  Governments  to  keep  the  road  in 
better  order,  must  be  answered  and  complied  with. 
A  year  or  two  of  bad  crops  intervening,  the 
insolvency  which  was  planted  in  its  very  organisa- 
tion by  the  system  of  construction  becomes  open 
and  declared. 

The  junior  liens  are  the  first  on  which  default 
is  made.  Usually  money  enough  is  earned  to  pay 
interest  upon  the  original  cost  of  construction, 
represented  by  the  first  lien.  Cases  are  rare,  even 
under  the  adverse  circumstances  of  over-competi- 
tion and  successive  bad  crops,  when  there  is  not  a 
surplus,  over  mere  operating  expenses,  sufficient  to 
produce  at  least  some  interest  for  the  first  lien. 
Upon  default  of  the  payment  of  interest  on  the 
junior  lien,  its  trustee  institutes  proceedings  to 
foreclose  ;  and  the  curious  result  is  then  brought 
about  that,  instead  of  a  sale  under  foreclosure, 
followed  by  a  distribution  of  the  proceeds  and  a 
fresh  start  by  the  purchaser,  with  a  smaller  capital, 
a  reorganisation  of  the  railway  takes  place,  which 
differs  wholly  from  that  which  occurs  in  ordinary 
cases  of  insolvency.  When  a  merchant  or  manu- 
facturer, whose  stock-in-trade  or  whose  property 
is  subject  to  mortgages,  becomes  insolvent,  the 
mortgagee  forecloses  his  lien  without  the  slightest 
reference  to  those  who  may  come  behind  him,  sells 
out  the  property  at  the  best  price  it  will  fetch, 
pays  himself  out  of  the  proceeds  in  part  or  in  full, 
and,  if  a  surplus  remains,  turns  it  into  court  to  be 
distributed  among  those  whom  it  may  concern. 

In  practice,  this  simple  process  of  foreclosure 


vi       RAILROADS  AND  THE  STATE    203 

has  been  found,  when  applied  to  railway  enter- 
prises, to  be  destructive  of  vast  pecuniary  interests, 
harsh  to  the  holders  of  junior  liens,  and  inconsistent 
with  the  public  right  to  have  a  highway  continu- 
ously operated.  Those  who  are  subordinate  to 
the  first  lien  have  opposed  it  bitterly,  since  they 
believed  their  expectations  to  be  of  the  nature  of  a 
vested  interest  which  should  not  be  interfered  with 
so  long  as  they  are  willing  to  bear  some  sacrifices 
for  the  realisation  of  those  expectations.  In  the 
endless  litigations  which  have  resulted  from  this 
contention,  courts  have  leaned  against  the  strict 
forfeiture  of  equities  of  redemption,  cutting  off  for 
ever  such  contingent  but  vast  pecuniary  interests. 
An  unwritten  law  of  adjustment,  depending  neither 
upon  statutory  sanction  nor  upon  direct  acknow- 
ledgment in  the  opinions  of  courts,  has  come  into 
existence,  based  upon  the  recognition  of  what  may 
be  called  an  ethical  patriotic  sentiment, — that  it  is 
a  hardship  to  disappoint  expectations  resting  upon 
the  faith  of  the  development  of  our  common 
country.  The  absolute  right  of  foreclosure,  while 
admitted  in  theory,  is  made  so  difficult  of  accom- 
plishment in  practice,  that  it  amounts  to  almost  a 
denial  of  a  contract  obligation  of  the  railway 
mortgagors.  Therefore,  there  is  a  semi -enforced 
acquiescence  by  first  mortgagees  in  almost  every 
case  where  the  junior  lienors  and  stockholders 
exhibit  any  willingness  to  place,  by  assessment  on 
their  own  holdings,  the  property  in  proper  repair 
and  efficient  condition  ;  adding  thereby  to  the 
security  of  the  first  lien,  and  either  paying  or 
finding  the  defaulted  interest  on  prior  liens. 


204          LIFE  OF  SIMON  STERNE      CHAP. 

Thus,  with  additional  capitalisation,  the  corpora- 
tion starts  afresh  on  a  career  of  drawing  drafts  on 
the  future,  based  on  the  expectancy  that  at  some 
other  time  the  junior  liens  and  the  stock  will  be 
lifted  out  of  the  non- interest -paying  and  non- 
dividend-paying  condition.  The  machinery  of 
this  adjustment,  for  the  very  reason  that  it  is  not 
recognised  by  the  law,  and  therefore  is  not  regu- 
lated by  it,  is  extremely  wasteful  and  expensive. 

Inasmuch  as  interest  upon  the  defaulted  bonds 
of  a  railroad  accumulates  during  the  time  that  it  is 
in  the  hands  of  a  receiver,  and  the  road  is  generally 
improved  during  that  period,  the  stockholders  are 
invited  to  participate  in  the  reorganisation,  and  are 
required,  as  a  general  rule,  to  pay  an  assessment 
varying  from  five  to  twenty  dollars  a  share,  for 
the  purpose  of  providing  first,  payment  of  back 
interest  on  the  first  lien  ;  second,  an  additional 
fund  for  betterments  after  the  road  passes  out  of 
the  hands  of  the  receiver  ;  and,  third,  a  guarantee 
fund  for  the  payment  of  interest  for  a  year  or  two. 
The  holders  of  the  junior  liens  are  generally  con- 
tent that  they  have  not  been  cut  off  by  the  prior 
lien  ;  are  willing  to  waive  their  back  interest  and 
take  new  bonds  for  their  former  ones  ;  and,  if  they 
are  not  required  to  pay  an  assessment,  regard 
themselves  as  having  safely  escaped  the  danger  of 
foreclosure  on  simply  receiving  new  pieces  of  paper 
for  those  they  formerly  held,  and  a  nominal  in- 
crease of  the  principal  sum  to  which  they  may 
regard  themselves  as  being  ultimately  entitled. 
Additional  securities  are  issued  to  represent  re- 
ceivers' certificates,  if  there  are  any,  and  to  provide 


vi       RAILROADS  AND  THE  STATE    205 

for  the  outlays  of  committees  and  the  expenses  of 
the  operations  of  a  guarantee  syndicate  to  take  at 
a  fixed  price  the  securities  to  be  issued  ;  so  that 
all  parties  in  interest  may  feel  confident  that  the 
money  necessary  to  take  the  road  out  of  the  hands 
of  the  receiver  will  be  furnished.  All  this  pro- 
duces the  further  anomaly  in  the  history  of  in- 
solvent railways  that,  instead  of  emerging  from  a 
condition  of  insolvency  with  a  lower  capitalisation, 
as  it  normally  should,  by  reason  of  not  having 
paid  interest  upon  the  original  capitalisation,  the 
railway  is  reorganised  with  a  higher  capitalisation, 
and,  therefore,  it  would  seem,  with  less  capacity  to 
pay  interest  upon  its  issues  or  securities.  The 
apparent  absurdity  is  explained,  and  the  practicability 
of  the  scheme  is  made  clear  by  taking  into  account 
that  since  1872  the  rate  of  interest  upon  prime 
securities  has  fallen  from  7  to  4  per  cent.  This 
condition  has  aided  and  fostered  this  method 
of  railway  reorganisation,  and  the  wastefulness  of 
its  procedure  is  largely  hidden  by  the  decline  of 
interest. 

When  a  time  of  stationary  interest  shall  have 
arrived,  the  method  of  reorganisation  which  had 
been  adopted  since  1873  would,  in  Mr.  Sterne's 
judgment,  become  impossible.  The  enormous 
expensiveness  of  receiverships,  the  fees  of  large 
numbers  of  committees  and  their  counsel,  the 
adjustment,  by  heavy  payments,  for  services  of 
all  sorts  during  the  process  of  reorganisation, 
would  be  a  burden  too  onerous  to  be  borne,  when 
it  could  neither  be  hidden  nor  counterbalanced  by 
a  drooping  rate  of  interest.  Mr.  Sterne  held  that 


206          LIFE  OF  SIMON  STERNE      CHAP. 

in  many  States,  more  especially  of  the  west  and 
south-west,  the  causes  and  consequences  of  the 
false  capitalisation  of  railways  had  been  wholly 
misunderstood  by  their  people,  and  therefore  by 
their  legislators.  Laws  retaliatory,  instead  of 
repressive,  had  been  enacted  ;  and  the  courts, 
influenced  unconsciously  somewhat  by  popular 
opinion,  had  rendered  decisions  of  a  confiscatory 
tendency,  which  neither  punish  the  offending 
parties  nor  right  any  wrong,  but  which  simply 
add  to  the  difficulties  and  embarrassments  of  the 
confiding  purchasers  of  railway  securities  in  the 
eastern  markets,  who  in  all  probability  acted  in 
entire  good  faith  in  making  their  purchases.  The 
legislation  of  these  States  is  based  on  the  idea  that, 
by  the  excessive  capitalisation  of  railroad  property, 
some  wrong  is  done  to  the  community  through 
which  the  railway  runs.  Mr.  Sterne  had  reached 
the  conclusion  that  the  wrong  done  is  to  the 
purchasers  of  the  stocks  and  bonds,  who  are 
misled  into  the  belief  that  the  printed  values  have 
some  correspondence  to  the  actual  values.  He 
pointed  out  that  many  things  are  done  in  the 
world  of  finance  which  it  is  entirely  proper  to 
prevent  before  they  are  accomplished,  but  which 
it  is  entirely  improper  to  punish  after  the  acts 
have  been  committed  if  there  were  no  law  pro- 
hibiting them.  A  legislative  body  composed  of 
wise  legislators,  would  seek  to  repress,  or  at  least 
to  limit  and  control,  artificial  capitalisation ;  but 
a  community  which  fails  to  do  so  by  the  exercise 
of  the  necessary  foresight  in  the  law  authorising 
corporations  of  any  character  to  be  formed,  and 


vi       RAILROADS  AND  THE  STATE    207 

which  indirectly  obtains  a  benefit  by  the  wrong- 
doing, has  lost  the  right  to  punish  for  past 
offences  of  that  character. 

When  the  penalty  of  past  recklessness  came  in 
1893,  and  about  one-sixth  of  the  total  mileage  of 
the  railways  of  the  United  States,  between  January 
1893  and  February  1894,  passed  from  the  control 
of  the  proprietary  interest  into  the  hands  of  the 
courts,  to  be  administered  by  receivers,  Mr.  Sterne 
contributed  to  the  Forum  a  thoughtful  article 
under  the  title  of  "  Recent  Railroad  Failures  and 
their  Lessons."  Here  was  a  sum  of  bankruptcy 
represented  by  a  capitalisation  of  bonds  and  stocks 
of  about  $1,750,000,000,  which  was  not  charge- 
able to  a  long  series  of  crop  failures,  nor  to 
diminished  earning  capacity  of  the  railway  com- 
panies themselves  from  the  over -construction  of 
new  lines,  nor  to  any  such  general  collapse  of 
business  as  to  make  the  misfortune  to  railway 
investments  merely  part  of  a  general  disaster 
overtaking  the  country.  As  Mr.  Sterne  pointed 
out,  while  there  had  been  a  severe  and  even 
serious  depression  in  all  departments  of  trade,  to 
none  had  the  result  been  so  ruinous  as  to  the 
railway  enterprises  of  the  United  States.  No 
sixth  part  of  any  one  of  the  numerous  com- 
mercial and  industrial  branches  of  the  activity  of 
the  country  had  come  to  grief;  nor,  indeed,  had 
anything  akin  to  it  occurred.  Even  during  the 
great  strain  in  the  months  of  July,  August,  and 
September •  1893,  commercial  credits  were,  as  a 
rule,  maintained,  and  engagements,  with  rare  ex- 
ceptions, met,  and  this,  notwithstanding  the  fact 


208          LIFE  OF  SIMON  STERNE      CHAP. 

that  in  large  mercantile  businesses  bills  fall  due 
almost  every  week,  and  not,  as  in  the  case  of 
railways,  at  long  intervals  and  on  fixed  interest 
days,  and  the  payment  of  which  can,  therefore,  be 
provided  for  months  in  advance. 

In  examining  the  peculiar  conditions  affecting 
railway  enterprises  to  which  the  disasters  of  1893 
were  to  be  attributed,  Mr.  Sterne  scouted  the  idea 
that  they  were  wholly  or  even  partially  due  to 
the  Interstate  Commerce  Law.  After  showing  in 
detail  the  results  of  the  application  of  that  law  to 
the  conduct  of  railway  business,  and  citing  some 
of  the  decisions  of  the  courts  which  had  reduced 
the  powers  of  the  Commission  to  a  very  small 
compass,  Mr.  Sterne  put  on  record  this  opinion  : — 

A  Commission,  therefore,  consisting  of  reasonable  and 
intelligent  gentlemen  who  are  not  even  clothed  with  the 
power  of  a  court ; — who  are  without  authority  to  make 
any  arbitrary  rulings,  or  of  enforcing  them  by  direct 
action  if  they  should  make  them  ;  whose  investigating 
functions  have,  in  large  proportions,  been  nibbled  away 
by  the  judicial  interpretations  of  the  last  three  years  ; 
whose  decrees  are  disobeyed  ;  whose  mandates  have  in 
several  instances  been  set  at  defiance,  and  who,  since  the 
enactment  of  the  law,  have,  year  by  year,  been  deprived, 
by  decisions  of  the  Federal  courts,  of  almost  the  whole  of 
their  controlling  moral  force, — cannot  be  held  responsible; 
nor  can  the  Act  which  it  is  their  function  to  interpret  and 
cause  to  be  observed  be  held,  in  any  but  a  very  remote 
and  to  an  almost  inappreciable  degree,  responsible  for  the 
extraordinary  calamity  which  has  overtaken  the  railway 
enterprises  of  the  country. 

The  first  explanation  which  Mr.  Sterne  offers 
of  the  phase  of  the  railway  problem  presented  by 


vi       RAILROADS  AND  THE  STATE    209 

the  events  of  1893  was  that  the  railways  have 
outgrown  the  ability  of  the  community  to  furnish 
men  of  the  high  moral  and  intellectual  order 
necessary  for  their  proper  administration.  Most 
railway  presidents  and  chairmen  of  boards  came 
from  the  ranks  of  other  professions,  or  from 
branches  of  employment  in  the  railway,  the  business 
of  which  is  wholly  foreign '  to  the  financial  ad- 
ministration of  the  road.  The  capacity,  industry, 
and  knowledge  required  for  the  successful  hand- 
ling of  the  budgets  of  railway  properties  which 
have  a  gross  income  ranging  from  $12,000,000  to 
$40,000,000  are  as  great  as  are  required  for  the 
balancing  of  a  nation's  expenditures  and  receipts. 
Whether  the  net  earnings  will  suffice  to  meet  the 
fixed  charges,  not  to  speak  of  dividends  on  stock, 
is  largely  dependent  upon  a  profound  knowledge 
of  the  internal  administration  of  the  railway  and 
the  development  of  its  earning  power,  and  also  to 
a  great  degree  upon  a  prevision  akin  to  genius,  of 
the  condition  of  markets  and  crops,  and  of  the 
general  financial  situation.  Quoting  the  statements 
that  between  the  calamity  year  of  1893  and  the 
normal  year  of  1892,  there  was  a  difference  in  the 
total  gross  earnings  of  183  railroads  in  the  United 
States  of  only  $25,000,000,  or  less  than  3  per 
cent  deficit,  Mr.  Sterne  remarked  that  even  con- 
ceding that  the  companies  which  were  driven  into 
thejiands  of  receivers  showed  a  greater  average  of 
loss,  nowhere  was  any  such  percentage  shown  as 
would  account  for  their  insolvency  were  the  rail- 
roads conducted  upon  any  safe  and  sound  business 
principles.  In  all  but  a  few  cases  the  railway 


210          LIFE  OF  SIMON  STERNE      CHAP. 

corporations  of  the  United  States  literally  live 
from  hand  to  mouth,  and  have  no  working  or 
reserve  capital  whatever.  A  railroad  usually  starts 
with  a  bonded  indebtedness  which,  taken  at  par, 
represents  a  value  in  excess  of  the  cost  of  the  road, 
and  upon  which  fixed  interest  is  compulsorily 
payable.  As  interest  runs  on  the  bonds  long 
before  the  completion  and  during  the  construction 
of  the  road,  a  part  of  the  bonds  are  issued  to  cover 
payment  of  interest.  Then,  years  after  the  road 
has  been  in  operation,  the  original  bonded  in- 
debtedness, representing  ties  that  have  rotted,  rails 
that  have  been  sold,  cars  that  have  been  broken 
up,  bridges  and  engines  that  have  disappeared, 
remains  a  charge  upon  the  road.  For  all  ad- 
ditional capital  invested,  new  equipment  bonds 
are  created  or  other  obligations  issued,  and 
finally  a  floating  debt  is  incurred.  All  these  again 
bear  interest,  until  the  large  total  represents,  not 
what  the  road  is  worth  as  it  stands,  but  the  whole 
capital  which  from  first  to  last  went  into  it,  much 
of  which  has  wholly  disappeared,  and  some  of 
which  has  been  stolen,  and  therefore  has  no 
interest  -  earning  capacity.  Nothing  is  written  off 
from  the  capital  account,  and  no  substantial  part 
of  the  earnings  is  set  aside  for  replacement.  All 
this  vicious  financing  produces  the  result  that 
large  floating  debts  are  constantly  accumulating, 
and  the  shock  of  a  single  bad  year,  affecting  either 
income  or  credit,  produces  insolvency. 

For  the  financial  resuscitation  of  the  railway 
system  of  the  country  after  the  calamitous  events 
of  1893,  and  to  prevent  their  recurrence,  Mr. 


vi       RAILROADS  AND  THE  STATE     211 

Sterne  believed  that  a  uniform  and  conservative 
system  of  railway  legislation,  simultaneously  enacted 
by  the  States  of  the  Union  and  strengthened  by 
federal  legislation,  was  imperatively  necessary.  He 
insisted  that  the  trustee  relation  of  the  majority  of 
the  stockholders  toward  the  minority  should  be 
recognised  and  enforced.  The  minority  should, 
in  proportion  to  their  strength,  perpetually  have  a 
voice  in  the  management ;  the  crude  confiscatory 
and  communistic  legislation  of  the  Southern  and 
Western  States  on  these  subjects  should  give  way 
to  scientific  and  conservative  measures.  Railways 
should  be  secured  a  field  of  operations  until  public 
necessities  require  the  construction  of  additional 
lines,  and  in  that  field  held  to  a  strict  public 
accountability  so  as  to  prevent  oppression  ;  reason- 
able facilities  for  the  development  of  a  fund  to 
meet  the  public  requirements  for  additional  safety 
and  accommodation  to  railway  servants  and  the 
public.  Pooling  should  be  permitted  under  the 
control  and  supervision  of  a  public  body  like 
the  National  Railway  Commission,  and  the  evils 
of  receiverships  and  the  waste  of  reorganisations 
limited,  if  not  wholly  prevented  ;  an  official  ac- 
counting should  be  provided  for,  and  some  safe- 
guard found  against  the  secret  accumulation  of 
floating  debt.  Mr.  Sterne  conceded  that  these 
reforms  could  not  be  accomplished  without  work 
and  sacrifice,  but,  as  he  remarked,  without  them  no 
good  things  in  this  world  are  accomplished. 

One  of  the  latest  important  public  utterances 
of  Mr.  Sterne  on  this  subject  was  in  the  form  of 
an  address  on  "  Railway  Pooling,"  before  the 


212          LIFE  OF  SIMON  STERNE      CHAP. 

Convention  of  the  New  York  Board  of  Trade 
and  Transportation,  on  October  26,  1897.  He 
prefaced  this  address  by  the  statement  :  "  As  a 
student  of  political  economy  ;  as  the  counsel  who 
conducted,  for  the  Board  of  Trade  and  Transporta- 
tion and  the  Chamber  of  Commerce  before  the 
Hepburn  Committee  in  1879,  ^e  investigation  of 
the  abuses  in  the  management  of  railways  in  the 
State  of  New  York,  which  resulted  in  the  appoint- 
ment of  the  Railroad  Commission  ;  as  the  drafts- 
man of  the  Railroad  Commission  Bill,  and  other 
remedial  measures  which  have  become  implanted 
in  the  policy  of  the  State  of  New  York  ;  as  one 
who  was  consulted  by  the  Cullom  Senate  Select 
Committee  on  Interstate  Commerce  in  relation  to 
the  proposed  congressional  legislation  of  1887  ;  as 
counsel  of  Railway  Corporations,  and  as  counsel  of 
the  Interstate  Commerce  Commission  in  some  of 
its  important  cases,  there  is  scarcely  a  phase  of  the 
matter  involved  in  the  question  whether  pools  or 
division  of  traffic  agreements  should  be  allowed  or 
not,  that  has  not  in  some  way  or  another  been  pre- 
sented to  my  mind."  He  said  that  he  had  been  a 
witness  to  the  condition  of  things  brought  about 
in  the  State  of  New  York  between  1876  and  1878, 
by  the  fierce  railway  war  which  then  prevailed.  A 
rate  was  made  on  flour  to  the  Minneapolis  miller 
without  a  corresponding  reduction  on  the  carriage 
of  grain  from  the  West  to  the  miller  of  Rochester 
and  Black  Rock,  so  that  the  mills  of  the  State  of 
New  York,  with  a  single  exception  which  enjoyed 
the  benefit  of  a  special  rate,  were  as  effectually  shut 
out  from  the  market  as  though  they  had  been 


vi       RAILROADS  AND  THE  STATE     213 

destroyed  by  the  torch  of  the  incendiary.  Goods 
were  carried  to  Boston  from  the  West  at  lower  rates 
than  they  were  carried  to  New  York,  and  goods 
were  shipped  to  Boston  and  carried  from  Boston 
to  the  West  at  lower  rates  than  they  were  carried 
from  New  York.  The  New  York  Central  Rail- 
road had  practically  no  rate  for  local  traffic  within 
the  State  of  New  York.  Every  rate,  on  applica- 
tion, was  made  special,  and  was  made  one  rate  to 
one  man  and  another  rate  to  another  man,  depend- 
ing upon  the  caprice,  friendliness,  or  sense  of  pro- 
priety of  the  local  traffic  manager.  It  was  then 
boldly  claimed,  and  the  claim  was  acted  upon,  that 
the  business  of  railroading  was  a  private  enterprise, 
with  which  the  State  had  no  concern.  As  the 
result  of  the  investigation  instituted  in  1879,  and 
lasting  over  nine  months,  the  duty  of  conducting 
which  devolved  on  Mr.  Sterne,  there  was  a  com- 
plete reversal  effected  of  the  legislation  which  had 
hitherto  prevailed  in  the  State,  and  railway 
managers  themselves  were  educated  as  to  their 
true  interests  and  duties  in  the  performance  of 
their  function,  by  being  enabled  to  grasp  the  idea 
that  their  interests  and  duties  were  harmonious. 

When  the  United  States  Congress  in  1887  took 
up  the  subject  of  regulating  the  commerce  which 
could  not  come  within  the  purview  of  each  State, 
the  question  of  permitting  or  prohibiting  pooling 
was  actually  mooted.  Mr.  Sterne  then  advised 
that  pooling  should  be  permitted  under  strict 
Governmental  supervision  ;  that  the  absence  of 
any  arrangement  for  the  maintenance  of  rates 
resulted  in  a  fluctuation  and  inequality  of  railway 


2i4          LIFE  OF  SIMON  STERNE      CHAP. 

charges  far  more  injurious  to  the  community  than 
the  slight  increase  of  rates  due  to  their  being  kept 
uniform.  In  other  words,  his  position  was  that 
the  rates  of  railroad  transportation  resemble  taxa- 
tion, in  this  respect,  that  even  a  higher  rate  of 
taxes  is  better  for  a  community  than  irregular, 
partial,  and  preferential  taxation,  although  the 
average  rate  be  lower.  It  was  therefore  his  con- 
viction that  the  inhibition  upon  pooling  in  the 
Interstate  Commerce  Act,  as  passed  by  Congress 
in  1887,  was  a  mistake,  and  that  the  inferential 
inhibition  against  agreements  to  preserve  rates  in 
the  anti-trust  legislation  of  1890,  as  interpreted  by 
the  supreme  court,  was  almost  a  misfortune.  He 
held  that  in  lieu  thereof  any  arrangement  between 
railroad  corporations  looking  to  the  maintenance 
of  the  rates  reported  to  the  Commission,  so  long 
as  those  rates  were  in  themselves  reasonable,  should 
have  been  favoured  on  the  condition  that  the  Inter- 
state Commerce  Commission  should  pass  judicially 
upon  any  such  arrangement  before  it  became  effec- 
tive, and  that  for  the  purpose  of  informing  the 
Commission,  and  of  enabling  it  to  pass  with  intelli- 
gence upon  the  pooling  agreement,  the  schedule  of 
rates  agreed  upon  be  simultaneously  subject  to  its 
scrutiny  and  acceptance.  Mr.  Sterne  pointed  out 
that  it  is  not  of  the  slightest  public  consequence, 
so  long  as  the  railway  company  itself  agrees  to  the 
terms,  whether  a  particular  railway  shall  have  10, 
15,  or  20  per  cent  of  a  given  total  of  through 
traffic.  It  seemed  to  him,  therefore,  that  the 
scrutiny  of  the  Commission  should  be  devoted 
wholly  to  the  rate  and  the  other  public  matters 


vi       RAILROADS  AND  THE  STATE    215 

which  are  the  result  of  the  pool,  and  that  the 
Commission's  approval  or  disapproval  should  be 
to  the  questions  thus  submitted.  He  believed  it 
to  be  also  reasonable  that  the  approval  or  dis- 
approval should  not  be  left  as  a  finality  to  the 
Commission,  but  should  be  subject  to  review  by 
the  Appellate  Divisions  of  the  United  States 
Circuit  Courts  and  by  the  Supreme  Court  of 
the  United  States. 

In  his  article  in  the  Forum  of  March  1894 
Mr.  Sterne  touched  a  point  likely  to  become  of 
growing  interest,  and  on  which  the  following 
correspondence,  from  which  names  are,  for  obvious 
reasons,  omitted,  throws  an  interesting  light  : — 

I  have  read  with  much  interest  your  article  in  the 
March  Forum  on  "Recent  Railroad  Failures  and  their 
Lessons." 

I  regret  that  you  saw  fit  to  give  the  weight  of  your 
name  to  accusations  against  trust  companies  as  trustees 
under  corporate  mortgages,  and  I  cannot  allow  such  accu- 
sations as  you  have  made  to  go  by  without  entering  my 
personal  protest  against  them. 

It  is  true  that  my  association  with  the  Trust 

Company  may,  in  your  opinion,  disqualify  me  for  exer- 
cising independent  judgment  in  such  a  matter.  Never- 
theless, I  think  I  am  capable  of  forming  an  opinion  free 
from  interested  motives. 

When  you  say  that  "  the  trustee  has  no  personal  sense 
of  responsibility,  and  no  personal  character  for  zeal  and 
discretion  to  maintain  towards  his  cestuis  que  trustent^ 
the  bondholders,"  you  are,  I  think,  gravely  in  error. 
When  you  charge  the  trust  companies  with  being  mere 
instruments  of  the  railroad  companies,  and  their  managers 
controlled  by  a  desire  to  derive  profitable  business  from 
the  railroad  companies,  you  are,  so  far  as  the Trust 


216          LIFE  OF  SIMON  STERNE      CHAP. 

Company  is  concerned,  unjust,  and  I  deny  the  truth  of 

the  statement.  In  my  association  with  Mr.  and 

his  company,  I  have  never  in  a  single  instance  known 
of  their  yielding  to  such  influences  as  those  to  which 
you  refer.  On  the  contrary,  I  have  always  observed  an 
eagerness  to  do  everything  possible  for  the  bondholders 
without  reference  to  the  wishes  and  desires  of  the  people 
from  whom  the  business  came.  Wherever  in  the  opinion 
of  the  counsel  for  the  trust  company  it  was  necessary  or 
proper  for  the  trustee  to  take  any  action  for  the  pro- 
tection of  the  bondholders  it  has  been  invariably  taken, 
and  the  motive  attributed  by  you  to  the  officers  of  these 
companies,  viz.  the  desire  not  to  offend  the  concentrated 
power  from  whence  their  profitable  business  is  derived, 
has  never  been  permitted  to  influence  the  decision  in  the 
slightest  degree. 

In  all  the  cases  where  we  have  had  occasion  to  recom- 
mend to  a  court  the  appointment  of  a  receiver  we  have 
never,  in  my  recollection,  asked  the  court  to  appoint  any 
receiver  except  upon  the  recommendation  of  bondholders, 
and  usually  of  a  majority  of  the  bondholders,  and  I  do 
not  remember  to  have  had  any  complaint  made  of  us  or 
our  action  in  that  respect.  It  is  strange  that  in  the 
course  of  more  than  ten  years  of  very  active  foreclosure 

business  there  has  never  been  any  complaint  of  the 

Trust  Company  in  the  matter  of  the  appointment  of  re- 
ceivers, if  as  you  say  the  rule  is  that  u  trust  companies 
have  special,  and  sometimes  sinister,  and  oftentimes 
conflicting  interests,  and  are  administered  by  persons 
in  sympathy  with  the  railway  officials." 

The  officers  and  managers  of  our  trust  companies  here 
are  among  the  best  of  our  citizens,  and  I  think  they  have 
reputations  to  maintain,  and  a  personal  responsibility  with 
reference  to  their  trusts. 

I  do  not  mean  to  say  that  the Trust  Company 

has  always  administered  its  trust  to  the  entire  satisfac- 
tion of  every  bondholder.  In  the  battle  between  mino- 
rities and  majorities  it  has  sometimes  happened  that  the 


vi       RAILROADS  AND  THE  STATE    217 

Trust  Company  has  been  compelled  to  take  sides — some- 
times with  the  majority  against  a  factious  minority,  some- 
times with  the  minority  against  an  oppressive  majority 
— but  their  decision  in  this  respect  has  always  been  in 
favour  of  what  they  conscientiously  believed  to  be  right, 
proper,  and  just,  and  not  that  which  would  be  merely 
profitable  in  a  pecuniary  sense. 

You  ask  :  "  Who  has  ever  heard  of  any  one  of  these 
trust  companies  calling  the  bondholders  together  to  pre- 
vent dishonesty,  waste,  and  mismanagement  before  their 
result  in  the  shape  of  a  default  of  interest  was  upon  them  ?  " 
You  know  as  well  as  I  do  that  the  trusts  are  those  which 
are  devolved  upon  the  trustees  under  corporate  mort- 
gages in  the  usual  form.  The  trustees  are  not  appointed 
to  prevent  dishonesty  or  mismanagement.  In  order  to 
charge  upon  them  the  duty  of  watching  over  all  the 
mortgaged  properties  with  an  eye  to  the  prevention  of 
any  mismanagement,  they  should  certainly  be  provided 
with  some  means  of  discharging  such  a  function.  The 
payment  of  a  trustee  of  50  cents  or  I  dollar  a  bond  for 
certifying  is  not  expected  to  furnish  a  fund  to  enable 
them  to  employ  experts  and  detectives  to  examine  their 
mortgage  properties  from  time  to  time,  and  I  never  before 
heard  that  any  reasonable  person  entertained  any  expec- 
tation that  they  would  perform  that  duty.  Railroad 
managers,  as  a  rule,  do  not  exhibit  their  dishonesty, 
waste,  and  mismanagement  in  a  very  public  way,  and 
to  constitute  the  trustees  under  mortgages  a  superin- 
tending body  to  insure  honesty,  economy,  and  proper 
management  in  railways,  would  be  essentially  to  vary  their 
sphere  and  duty  from  that  which  now  prevails.  It  would 
be  more  pertinent  to  ask  whether  there  was  ever  a  case 
where  any  one  called  the  attention  of  a  trustee  to  dis- 
honesty, waste,  and  mismanagement,  and  called  upon  the 
trustee  to  take  proper  steps  to  prevent  it,  where  the  trustee 
refused  to  do  so. 

You  railway  attorneys  who  draw  these  mortgages 
limit  the  powers  of  the  trustee  in  every  way  possible. 


218          LIFE  OF  SIMON  STERNE      CHAP. 

You  give  them  a  mere  naked  mortgage  title,  and  hem  them 
in  by  every  possible  restriction.  You  tie  them  down  so 
that  they  can  come  into  court  only  under  prescribed 
conditions  and  in  fixed  cases.  You  are,  as  other  railway 
attorneys  are,  vigorous  in  opposing  any  action  of  the 
trustee  except  where  the  letter  of  the  contract  authorises 
the  proceeding.  But  no  bondholder,  to  my  recollection, 

has  ever  complained  that  the Trust  Company  refused 

to  act  when  it  should  have  acted. 

There  are  many  things  in  your  article  which  meet 
with  my  cordial  approval,  and  some  of  the  evils  of  which 
you  complain  are  undoubtedly  great  evils  which  should 
be  corrected.  I  believe  that  there  should  be  legislation 
which  would  prohibit  the  appointment  of  any  person  as 
receiver  who  was  connected  with  the  insolvent  company 
as  an  officer,  director,  or  otherwise  ;  but  in  your  strictures 
upon  trust  companies  as  trustees  I  think  you  have  gone 
altogether  too  far,  and  I  cannot  refrain  from  expressing 
my  regret  at  what  you  have  done. — Yours  very  truly. 

To  which  Mr.  Sterne  replied — 

My  dear  Mr. I  suppose  I  must  allow  myself  to 

be  quite  seriously  criticised  for  the  pleasure  of  having  your 
cordial  approval  of  the  many  things  in  ^my  article  ;  but 
lift  yourself  to  an  elevation  as  much  above  the  interests 
of  the  Trust  Companies  as  I  do  above  the  administration 
of  railways  to  get  at  a  proper  point  of  view.  I  admit  that 

your  Trust  Company,  the ,  and  our  mutual  friend 

Mr. ,  and  all  the  officers,  are  as  free  as  circumstances 

will  permit  from  all  the  evils  of  Trust  Company  adminis- 
tration or  railway  trusteeship,  and  if  it  had  been  possible 
to  make  a  special  reference  of  exemption  to  them  or  it, 
and  one  or  two  other  companies  in  New  York  City,  I 
would  have  done  so.  But  I  have  had  an  experience  with 
so  many,  whom  I  could  not  single  out  by  name,  which 
justifies  every  word  of  my  criticism  ;  and  you  may  re- 
member one  or  two  incidents  which  bear  out,  to  your 


vi       RAILROADS  AND  THE  STATE     219 

own  personal  knowledge,  the  strictures  that  I  made  in 
my  article. 

My  first  impulse  after  receiving  your  letter  was  to  go 
over  and  have  a  talk  with  you,  but  I  shall  probably  follow 
this  letter  within  a  few  hours. 

The  railway  situation  is  one  to  which  every  right- 
thinking  man  connected  with  the  administration,  directly 
or  indirectly,  of  those  great  properties  should  give  some 
thought  in  the  way  of  correcting  the  evils  attending  their 
administration.  It  is  becoming  a  scandal  of  great  magni- 
tude, and  which,  for  your  own  credit  in  the  eyes  of  the 
world,  we  should  rectify.  If  you  were  not  so  busy  and 
hampered  by  interests,  you  would  probably  be  able  to 
make  a  very  important  contribution  towards  our  enlighten- 
ment. As  you  forego  doing  so,  you  must  let  us  lesser 
lights  stumble  along  as  best  we  can,  and  take  the  good 
that  we  can  offer  with  the  mistakes  which  we  will  inevit- 
ably make ;  but  always  believe  me  to  be  both  sincere  and 
fearless — you  might  regard  me  perhaps  as  reckless — in  my 
willingness  to  oppose  the  wrongs  I  see,  and,  at  all  events, 
always  believe  in  my  esteem  for  you  and  those  that 
surround  you  in  your  own  office  and  the  office  of  your 

leading  client,  the  Trust  Company. — Ever  yours 

faithfully,  SIMON  STERNE. 


CHAPTER  VII 

CORPORATIONS    AND    CORPORATE    RESPONSIBILITY 

MR.  STERNE  had  ample  opportunity  to  study  the 
relations  between  the  modern  corporation  and  the 
community  on  all  its  sides.  In  a  lecture  delivered 
in  1880,  he  considers  "The  Corporation:  its 
Benefits,  its  Evils  ;  as  Benefactor,  as  Monopolist." 
In  this  discourse  he  claimed  that  the  corporation 
had  neither  beginning  of  years  nor  end  of  days. 
It  is  not  a  growth  of  this  century,  nor  even  of 
modern  civilisation.  It  is  older  than  what  is  known 
as  ancient  civilisation.  It  even  ante-dates  written 
history.  As  each  corporation  has,  as  lawyers  define 
it,  perpetual  existence,  aggregate  corporations  will, 
in  all  probability,  be  the  last  thing  to  be  frozen  to 
death  when  the  earth  shall  have  cooled,  and  the 
sun  no  longer  give  us  heat  enough  to  maintain 
animal  and  vegetable  life. 

To  the  corporation  as  it  exists  to-day  he  assigned 
a  role  essentially  beneficent.  The  timidity  of  capital 
is  proverbial ;  and  in  all  probability  nothing  short 
of  the  limited  liability  offered  by  the  shareholding 
interest  could  have  secured  the  necessary  funds  to 
realise  for  practical  purposes  the  mechanical  and 


CH.VII  CORPORATE  RESPONSIBILITY  221 

chemical  discoveries  and  inventions  which  within 
the  past  century  have  changed  the  relations  of 
peoples  toward  each  other,  and  stimulated  the 
production  of  wealth  a  hundred-fold.  If,  in  each 
case,  the  application  of  the  discovery  and  the 
experiments  necessary  to  test  it  would  have  imposed 
an  unlimited  liability,  it  is  extremely  doubtful 
whether  capitalists  would  have  been  found  to  risk 
their  all  upon  ventures  which,  in  their  early  stages, 
must  have  appeared  to  the  cautious  investor  as 
hopelessly  chimerical.  It  was  only  by  the  tempting 
bait  of  unlimited  profits,  with  a  positive  limitation 
of  liability,  that  capital  could  be  allured  from  safe 
ground  to  embark  upon  a  dangerous  sea  of  uncer- 
tainty and  experiment,  which,  however,  turned  out 
more  fruitful  of  wealth  than  all  the  sources  of 
profit  from  which  it  was  tempted.  Taking  into 
consideration  the  enormous  profits  which  have 
been  derived  from  the  application  of  steam,  of 
electricity,  of  gas,  from  the  power-loom,  from  the 
Whitney  gin,  and  from  thousands  of  appliances 
owned  and  operated  by  corporations  ;  the  opening 
up  of  mines,  the  development  of  mines,  an  industry 
so  subject  to  fluctuations  and  conditions  of  un- 
certainty, that  upon  a  large  scale  it  is  scarcely  ever 
found  in  the  hands  of  private  individuals.  Mr. 
Sterne  thought  it  safe  to  say  that  the  direct  and 
immediate  economical  advantages  of  limited  liability 
have  been  largely  in  excess  of  the  losses  which  have 
come  in  its  train. 

The  debit  side  of  the  account  of  the  joint 
stock  corporations,  from  an  economical  point  of 
view,  is  the  tendency  to  bring  upon  us  recurring 


222          LIFE  OF  SIMON  STERNE      CHAP. 

financial  crises.  The  share  is  not  only  a  legally 
recognised  divisible  proportion  of  a  whole,  but  it  is 
a  draft  upon  the  future  expectations  and  hopes  of 
the  individuals  who  organised  the  enterprise.  It  is 
in  concrete  form  a  discounting  of  the  future,  and 
represents  in  an  aggregate  sum  the  expectations 
of  a  generation.  A  mining  enterprise  is  started,  or 
a  new  invention  is  made,  which  promises  success, 
lures  capital  to  secure  its  development ;  and  the 
capital  stock  of  such  an  organisation  is  very  likely 
to  represent  not  merely  the  present  value,  but  the 
anticipations  of  the  projectors  as  to  its  prospective 
value.  Thus  an  enormous  quantity  of  fictitious 
representatives  of  value  are  created,  quite  out  of 
proportion  to  actually  available  assets,  and  having 
for  their  foundation  no  other  basis  than  human 
hopes.  When  these  enterprises  are  successful,  and 
these  hopes  are  in  a  fair  way  of  being  realised,  we 
have  what  is  called  a  time  of  inflation.  A  specula- 
tive feeling  pervades  the  community,  and  this 
large  shareholding  interest  affords  an  indicator  as  a 
thermometer  does  of  the  weather,  of  the  existence 
of  such  a  feeling,  but,  unlike  the  thermometer,  to 
some  degree  stimulates  it.  Large  fortunes  are 
made  not  because  any  particular  share  has  increased 
in  value,  but  because  the  expectations  indulged  in 
yesterday  by  a  few  are  supposed  to-day  by  many 
to  be  nearer  realisation.  And  therefore  the  differ- 
ence may,  and  frequently  does,  represent  an  actual 
market  value  in  stocks,  based  on  hopes,  out  of 
which  actual  fortunes  are  made.  Of  course,  since 
it  is  possible  to  realise  fortunes  on  the  Stock 
Exchange  from  the  different  grades  of  hopefulness 


vii       CORPORATE  RESPONSIBILITY     223 

and  confidence  that  may  exist  in  the  human  breast 
from  time  to  time,  there  must  be  a  corresponding 
possibility  of  loss  and  ruin  arising  from  depression 
of  spirits  and  distrust  which  may,  for  the  time  being, 
pervade  the  community.  And  yet  the  actual 
earnings  or  property  represented  by  the  shares 
which,  in  the  one  case,  secure  fortune's  smiles,  and 
in  the  other  bring  penury  and  ruin,  may  not  in  the 
least  have  changed  in  intrinsic  value. 

So  long  as  the  law,  in  the  ordinary  and  industrial 
pursuits  of  society,  simply  allows  people  to  combine 
and  to  limit  their  liability  by  giving  adequate  notice 
of  their  intention  to  do  so,  and  the  function  and 
activity  of  the  combination  do  not  partake  of  a 
monopoly  character,  or  do  not  attach  themselves 
to  what  are  substantially  State  functions,  there  can 
be  but  little  injury  or  danger,  other  than  that 
adverted  to,  latent  in  such  a  combination.  In  such 
a  case  the  function  of  the  State  is  properly  limited 
to  insisting  on  the  utmost  publicity  of  financial 
administration,  in  order  to  protect  the  shareholding 
interest  as  much  as  possible  from  being  exploited 
by  the  directors.  When  the  function  to  be  per- 
formed by  the  corporation  partakes  of  a  public 
character,  is  one  that  involves  the  exercise  of  the 
right  of  eminent  domain,  or  is  affected  by  a  public 
interest,  either  because  of  the  large  capital  necessary 
for  the  construction  of  the  work  or  because  the 
locality  of  the  corporation  or  the  kind  of  business 
in  which  it  is  engaged  partakes  of  a  monopoly 
character,  then  such  a  corporation  becomes  a  child 
of  the  State.  That  is  to  say,  in  such  a  case,  the 
State  exercises  part  of  its  duties  through  the  instru- 


224          LIFE  OF  SIMON  STERNE       CHAP. 

mentality  of  a  corporation,  inviting  private  capital 
to  aid  in  the  performance  of  these  functions  on  the 
promise  of  giving  to  such  capital  the  whole  or  the 
greater  part  of  the  profits  derived  therefrom.  In 
such  a  case  the  supervision  and  control  of  the  State 
should  be  obligatory,  because  their  absence  leads  to 
complications  and  disturbances  of  a  most  dangerous 
character. 

Whenever  the  Government  in  inviting  capital 
to  perform  what  substantially  is  its  own  function, 
acts  under  the  belief  that,  in  delegating  its  right 
to  exercise  eminent  domain  for  the  purpose  of 
creating  these  corporations  or  companies,  it  creates 
and  stimulates  competition  contemporaneously  with 
their  endowment,  it  sooner  or  later  discovers  that 
such  competition  does  not  prevail ;  that  the 
absence  of  personal  responsibility  to  the  people  for 
the  exercise  of  quasi-governmental  power  by  these 
corporations  leads  to  tyranny,  and  that  badly  as 
the  governmental  machinery  may  work,  it  is  better 
to  accept  its  function  than  the  more  perfect 
machinery,  but  diminished  personal  responsibility 
of  the  substituted  corporate  enterprise.  Eight 
years  later,  Mr.  Sterne  became  painfully  aware  of 
the  extent  to  which  this  tyranny  might  be  carried, 
and  we  find  him  asking  in  the  Railway  and  Cor- 
poration Law  Journal  of  November  17,  1888  : 
"  Is  it  not  the  experience  of  every  practising  lawyer 
that,  when  he  is  brought  in  contact  with  one  of 
the  great  combinations  of  capital  and  its  doings, 
when  he  sees  the  reckless  manner  in  which  it 
deals  with  the  stockholding  interest,  the  artifices 
connected  with  its  administration,,  and  the  mis- 


vii       CORPORATE  RESPONSIBILITY     225 

representations  and  positive  frauds  in  relation 
to  such  administration,  coupled  with  the  entire 
immunity  from  responsibility  accompanying  the 
building  up  of  huge  fortunes  by  manipulation  of 
values  and  their  representatives  by  unscrupulous  but 
extraordinarily  gifted  individuals,  that  the  weapons 
of  the  law  break  down  when  directed  against  or 
brought  in  conflict  with  these  novel  devices  of 
capital  to  escape  legal  responsibility,  which  absorbs, 
without  rendering  a  compensating  service,  a  vast 
proportion  of  other  people's  goods  ?  "  He  cited 
as  examples  the  manner  in  which  the  guaranty  of 
the  Manhattan  Elevated  Railroad  Company  to  pay 
8  per  cent  on  the  stock  of  the  Metropolitan 
Elevated  Railroad  was  defiantly  broken,  and  this 
breach  maintained  ;  the  decisions  which  have  up- 
held the  absorption  of  rival  lines  by  the  Western 
Union  Telegraph  Company  in  defiance  of  limita- 
tions on  corporate  authority  and  in  defiance  of  the 
general  laws  of  the  State,  and  the  facilities  which 
have  been  afforded  to  street,  steam,  and  cable 
railway  companies,  in  disregard  of  constitutional 
limitations,  to  lay  tracks  and  confiscate  private 
easements. 

Mr.  Sterne  went  on  to  ask  whether  it  was  not 
true  that  a  stock  manipulator  and  manufacturer  of 
the  United  States  may  put  out  issues  of  securities 
of  all  kinds  by  artfully  contrived  representations 
publicly  made  through  others,  of  expectations  of 
continued  earnings,  and  after  the  investments  are 
made,  take  the  very  opposite  position,  showing 
that  the  earnings  which  had  been  represented 
as  made,  were  illusory,  that  rival  lines  made  the 

Q 


226          LIFE  OF  SIMON  STERNE      CHAP. 

earnings  of  the  same  amount  impossible,  and  that 
the  stocks  and  bonds  were  issued  upon  expectation 
that  had  proved  false,  and  were  substantially  over- 
issues as  compared  with  the  amount  that  could  be 
realised  out  of  the  property,  and  then  he  himself 
become  the  largest  purchaser  at  the  low  prices, 
after  having  sold  at  the  highest,  and  reorganised 
companies  thus  wrecked,  upon  a  new  basis  of 
interest  bearing  securities  lower  than  those  which 
had  been  issued  by  himself  and  his  coadjutors  a 
few  years  before,  making  money  by  inflation, 
making  money  by  ruining  the  inflated  property, 
and  again  making  money  under  reorganisation, 
all  engineered  and  manipulated  by  himself  under 
the  cover  and  by  means  of  the  law.  That  so 
monstrous  a  transaction,  yielding  enormous  sums 
of  money  to  its  projectors  and  resulting  in  disastrous 
losses  to  the  investor,  could  succeed,  and  yet  that 
the  law  should  be  powerless  to  attach  thereto  a 
well-defined  responsibility  by  way  of  restitution, 
could  only,  in  Mr.  Sterne's  judgment,  arise  from 
the  fact  that  the  courts  were  acting  on  a  new  legal 
maxim  (which  he  described  as  "  de  maximis  non 
curat  lex  ")  without  knowing  it.  The  very  magni- 
tude of  the  transaction  makes  the  individual  as 
weak  and  powerless  against  the  perpetrators  as  he 
is  against  the  Government.  He  cannot  assert  his 
rights  without  spending  a  sum  larger  than  that  of 
which  he  has  been  deprived.  When  he  does  get  a 
hearing,  his  case  comes  under  one  of  the  exceptions 
to  the  general  principles  of  law  or  equity  on  which 
he  relies,  and  which,  therefore,  ceases  to  make  the 
case  at  bar  applicable  to  such  a  manipulating 


vii      CORPORATE  RESPONSIBILITY     227 

potentate,  and  he  finally  abandons  his  case  dis- 
heartened, or  gets  an  adverse  decision  in  the 
court  of  last  resort  on  a  question  of  practice.  Or, 
if  the  courts  grapple  with  the  question  on  its 
merits,  they  find  themselves  lost  and  amazed  by 
the  financial  difficulties,  and  fail  to  apply  to  so 
intricate  and  complex  a  situation  the  plain  prin- 
ciples of  law  and  equity,  so  that  we  have  an  illus- 
tration that  when  a  fraud  or  wrong  takes  on  colossal 
proportions  in  figures,  the  litigant  has  no  remedy. 
Mr.  Sterne  gave  two  reasons  why  the  law  has 
no  remedy  in  such  cases  :  ( i )  The  intelligence  of 
our  administrators  of  the  law  is  not  equal  to  the 
intelligence  of  our  leading  bankers  and  railway 
magnates.  The  industrial  development  of  this  age 
has  been  far  beyond  the  juridical  development. 
The  law  has  made  in  recent  years  no  such  progress 
as  every  useful  art  and  science  has  made.  The 
consequence  is  that  the  applied  arts  and  sciences 
have  attracted  into  their  field  the  strongest  and 
best  intellects  of  the  community,  and  they  are 
better  equipped  than  the  administrators  of  the  law 
in  ingenuity  and  intellectual  alertness.  Nimbleness 
of  mind  is  more  readily  met  with  in  the  bankers' 
and  railway  presidents'  rooms  than  on  the  appellate 
benches  of  the  courts  of  the  land.  There  is 
learning  on  the  one  hand,  and  a  preternaturally 
developed  instinct  of  gain  and  the  seizing  of 
opportunity  on  the  other.  The  slower -footed 
animal,  therefore,  cannot  overtake  the  fleeter 
organism.  Before  the  nineteenth  century  the 
government  and  the  law  had  absorbed  the  strongest 
intellects  of  the  community.  The  nineteenth 


228          LIFE  OF  SIMON  STERNE      CHAP. 

century  widened  the  field  of  activity  for  intellect, 
and  offered  greater  attractions  and  more  profitable 
results  in  directions  other  than  the  law  or  govern- 
ment. Whatever  of  strength  there  is  in  the  law 
is  retained  by  the  stronger  interest  to  be  turned 
against  the  rest  of  the  community.  The  law 
itself  becomes  thereby  an  element  of  oppression, 
instead  of  the  benevolent  mother  of  Justice.  (2) 
The  law  in  the  machinery  of  formation  has  not 
kept  pace  with  the  general  development  of  the 
community.  Our  law-making  is  still  in  the 
colonial  period.  There  is  no  division  of  public 
from  local  law.  No  notice  is  given  of  local  laws 
to  those  interested  in  their  passage  or  rejection, 
and  at  the  end  of  each  year  Acts  are  either  pur- 
chased or  smuggled  through  the  legislative  bodies 
without  any  knowledge  on  the  part  of  the  many 
affected  thereby,  and  unfortunately  without  any 
responsibility  being  attached  to  such  loose  and 
slipshod  legislation  by  the  political  party  in  power. 
Four  years  later,  in  the  course  of  a  philosophic 
examination  into  the  general  question  of  the 
responsibility  of  the  State  to  see  to  it  that 
monopolies  created  through  its  agency  do  not 
become  oppressive,  Mr.  Sterne  remarked  that  an 
adherent,  however  blind,  of  the  laissez-faire 
doctrine,  cannot  insist  that  the  State  should  let 
alone  monopolies  created  by  law.  He  held  it  to 
be  the  constant  duty  of  the  law-making  power  to 
circumscribe  the  special  organisms  which  it  calls 
into  being.  Where  a  business  has  grown  to  such 
proportions  in  the  hands  of  certain  individuals  or 
of  a  combination  of  individuals,  that  they  can 


vii      CORPORATE  RESPONSIBILITY     229 

crush  out  competition  by  losses  deliberately  incurred 
by  them,  and  which  they  can  easily  bear  by  reason 
of  their  enormous  accumulation  of  capital,  and 
which,  therefore,  drives  out  of  business  those  who, 
though  equally  capable  of  rendering  the  service  of 
supplying  the  commodity,  are  incapable  of  bearing 
the  losses  thus  imposed,  a  problem  is  presented 
which  has  not  yet  been  solved  by  modern  society. 
He  instanced  the  Standard  Oil  combination  as  the 
most  flagrant  and  the  most  conspicuous  instance  of 
this  in  the  country.  Originally,  a  corporation  with 
a  capital  not  larger  than  that  of  many  of  its  com- 
petitors, its  managers,  by  securing  special  freight 
rates  from  the  great  trunk  lines  to  the  seaboard 
for  their  crude  petroleum  and  the  refined  article, 
obtained  so  great  an  advantage  over  their  com- 
petitors that  they  had,  on  the  one  hand,  the 
producer  in  their  toils,  and,  on  the  other,  so 
effectually  destroyed  their  rivals  in  the  business 
of  refining,  that  90  per  cent  of  that  business  was 
engrossed  and  monopolised  by  the  combination. 
Mr.  Sterne  declared  it  to  be  idle,  because  it  is  wide 
of  the  truth,  to  say  that  they  were  either  superior 
refiners  or  superior  producers.  They  were  simply 
less  scrupulous  or  more  alert  than  their  neighbours 
in  making  combinations  with  the  railways,  who,  in 
violation  of  all  proper  business  interests  connected 
with  transportation,  and  of  their  duty  to  the  State, 
entered  into  a  compact  to  deprive  of  a  market 
others  equally  favourably  situated  for  production 
and  refining.  The  result  was  that  the  Standard 
Oil  Company  could  purchase  other  refineries  at 
any  price  they  saw  fit  to  pay,  and  in  many  cases 


23o          LIFE  OF  SIMON  STERNE      CHAP. 

purchased  them  simply  to  dismantle  them  and 
curtail  production.  When,  by  such  methods,  the 
combination  became  so  powerful  as  to  control  a 
capital  variously  estimated  from  ten  to  twenty 
millions  of  dollars,  they  openly  dictated  terms  to 
the  railways  with  which  they  had  previously  been 
in  collusive  combination,  and  obtained  exclusive 
control  over  their  transportation  facilities  from  the 
producing  points  to  the  seaboard.  Not  content 
with  that  condition  of  affairs,  they  determined  to 
abandon  the  railways  altogether  and  constructed 
their  own  pipe  lines  to  tide  water.  Here,  then,  is 
an  industrial  monopoly  not  created  by  law,  which 
has  no  legal  sanction  for  its  performances  or  exac- 
tion, but  which,  nevertheless,  operates  precisely  in 
the  same  manner  as  though  a  law  had  been  passed 
placing  the  consumers  of  oil  in  their  possession,  to 
be  taxed  at  their  own  will,  requiring  the  railway 
companies  to  charge  them  only  such  rates  as  they 
see  fit  to  pay,  prohibiting  other  people  from 
engaging  in  the  same  business,  and  dismantling  and 
destroying  the  works  of  those  already  engaged  in 
it.  Were  such  a  law  proposed  to  be  enacted,  the 
community  would  cry  out  that  it  was  monstrous, 
far  exceeding,  in  tyrannical  outrage  upon  the  com- 
munity, anything  ever  attempted  by  the  Tudors. 
Yet  in  this  free  country,  where  all  trades  and 
occupations  are  supposed  to  be  open  to  competition, 
this  mischievous  result  has  been  achieved.  Mr. 
Sterne  insisted  that  it  was  clearly  the  duty  of  the 
law -maker,  under  the  principle  of  salus  populi 
suprema  lex,  to  insist  that  it  is  no  part  of  the  law 
of  competition  that  men  shall  use  their  capital 


vii      CORPORATE  RESPONSIBILITY     231 

deliberately  to  ruin  other  people,  and  the  legislator 
should  prevent  the  existence  of  conditions  which 
enable  such  unfair  advantages  to  be  obtained,  to 
check  them  when  they  are  likely  to  be  obtained, 
and  to  undo  the  mischief  if  it  has  been  created 
by  reason  of  the  neglect  of  the  law-maker.  The 
State  has  a  right  to  step  in,  and  does  step  in,  to 
protect  all  classes  of  the  community  who  are 
supposed  not  to  deal  on  equal  terms  with  those 
with  whom  they  are  thrown  in  contact  ;  clients 
as  against  lawyers,  wards  as  against  their  trustees, 
infants  as  against  persons  of  full  age.  Therefore 
some  kind  of  protection  was,  in  his  judgment,  due 
to  industries  which  are  likely  to  be  subjected  to  an 
influence  so  baneful  and  sinister  as  the  one  which 
has  been  exercised  by  the  Standard  Oil  Company. 

It  is  needless  to  say  that  the  general  question 
of  the  relation  of  corporations  to  the  community 
broadened  very  considerably  in  the  fifteen  years 
between  1883  and  1898.  In  an  address  delivered 
early  in  the  latter  year  before  the  Academy  of 
Political  Science,  Mr.  Sterne  deals  with  the 
economic  aspects  of  corporate  organisations  and 
trade  combinations  in  a  more  comprehensive  way 
than  the  subject  demanded  at  the  date  of  the 
productions  above  summarised.  He  begins  this 
address  by  assuming  that  the  trade  combinations 
upon  which  light  was  sought  through  the  medium 
of  the  discussion  to  which  his  paper  was  a  contribu- 
tion, were  the  combinations  familiarly  known  as 
trusts.  He  regarded  the  question  as  so  intricate, 
and  in  many  of  its  manifestations  so  novel,  that  all 
which  could  be  put  forth  at  the  present  day  in 


232          LIFE  OF  SIMON  STERNE      CHAP. 

regard  to  it  are  the  mere  acorns  of  thought  from 
which  trees  of  knowledge  might  grow,  but  no 
judgment  which  might  be  considered  as  conclusive 
could  be  ventured  upon  even  by  the  most  com- 
petent economists.  It  was  his  function  to  present 
the  view  of  one  who  in  the  storm  and  stress  of 
practical  life  had  been  compelled  to  modify  a  great 
many  of  the  ideas  which  he  had  imbibed  from  the 
earlier  economists,  and  who  probably  looked  at 
the  question  from  a  different  standpoint  than  the 
closet  or  academic  economist.  After  quoting  the 
language  of  one  of  the  Justices  of  the  Supreme 
Court  in  the  prevailing  opinion  in  the  case  of  the 
United  States  against  the  Trans-Missouri  Freight 
Association,  in  which  occurs  the  following  passage  : 
— "  It  is  wholly  different,  however,  when  such 
changes  are  effected  by  a  combination  of  capital 
whose  purpose  in  combining  is  to  control  the 
production  or  manufacture  of  any  particular  article 
in  the  market,  and  by  such  control  dictate  the 
price  at  which  the  article  can  be  sold,  the  effect 
being  to  drive  out  of  business  all  the  small  dealers 
in  the  commodity,  and  to  render  the  public  subject 
to  the  decision  of  the  combination  as  to  what  price 
shall  be  paid  for  the  article," — Mr.  Sterne  went  on 
to  ask  whether  all  which  we  call  civilisation  had 
not  been  effected  by  just  this  sort  of  combination 
by  capital  in  its  lesser  forms,  and  accompanied  by 
the  sacrifice  of  independence  on  the  part  of  indi- 
viduals who  make  of  themselves  subordinates  in 
the  army  of  production,  of  government,  or  of 
distribution  ? 

When  the  steam-power  loom  was  established  in 


vii       CORPORATE  RESPONSIBILITY     233 

an  industrial  district,  away  went  the  independence 
of  every  home-industry  weaver,  and  he  had  either 
to  go  to  the  workhouse  or  into  the  readjusted 
factory  industrial  conditions.  All  these  sturdy  in- 
dependent weavers  were,  to  use  the  language  of 
the  Justice  of  the  Supreme  Court,  "  independent 
business  men,  heads  of  their  establishments  small 
though  they  might  be  ;  and  they  were  changed 
into  mere  servants  or  agents  of  a  combination  for 
selling  the  commodity  which  they  once  dealt  in 
or  manufactured,  having  no  voice  in  shaping  the 
business  policy  of  the  company,  and  bound  to  obey 
orders  issued  by  others."  Mr.  Sterne  argued  that 
every  human  being  who  works  labours  for  selfish 
ends,  for  the  gratification  of  his  individual  desires ; 
he  produces,  however,  a  general  good.  A  trade 
combination  which  lessens  the  cost  of  production 
may  wish  to  dictate  prices,  but  inasmuch  as  it 
cannot,  by  any  possibility,  hide  from  the  com- 
munity the  profits  it  makes,  it  tempts  so  much  new 
capital  in  the  line  of  production  which  it  seeks  to 
control,  that  it  soon  discovers  it  has  lessened  the 
cost  of  production  for  the  benefit  of  others,  and 
has  failed  to  reap  the  profit  which  it  expected  to 
derive  therefrom,  and  that  thus  but  a  small  part  of 
the  saving  which  it  has  occasioned  remains  in  its 
hands.  But  if  trade  combinations  produce  a  sum 
of  good  overbalancing  their  evil,  the  question 
arises,  Why  has  the  law  from  time  immemorial 
forbidden  and  punished  with  great  severity,  fore- 
stalling, engrossing,  and  combinations  to  control 
the  markets  for  the  prime  necessaries  of  life  ? 
The  answer  is,  That  when  the  means  of  communica- 


234          LIFE  OF  SIMON  STERNE      CHAP. 

tion  between  the  different  parts  of  a  country  were  so 
primitive  that  it  was  possible  for  famine  to  prevail 
in  some  districts,  while  in  others  there  was;  great 
abundance,  it  became  evident  that  if  the  individual 
capitalists,  or  a  combination  of  capitalists,  were  per- 
mitted to  purchase  and  withhold  the  necessaries  of  life 
in  one  part  of  the  land,  relief  might  not  come  from 
another  part  before  people  had  reached  the  point 
of  starvation.  In  these  remote  times  of  primitive 
development  of  the  ways  and  means  of  inter- 
communication, the  laws  that  were  aimed  against 
efforts  to  monopolise  the  necessities  of  life  were 
just  and  wisely  protective.  Now,  however,  if  a 
capitalist  or  combination  of  capitalists  were  to 
purchase  every  bushel  of  wheat  and  other  cereals 
raised  in  a  given  district,  that  district  would  in  a 
short  time  be  glutted  with  food  supplies  from  the 
outside  until  the  price  was  restored  to,  if  not 
reduced  below,  its  natural  point.  Mr.  Sterne  held 
that  every  modern  effort  of  a  trade  combination 
to  control  the  price  of  a  primary  article  of  food 
had  failed  to  produce  a  dearth  of  the  article,  and 
to  illustrate  his  point,  he  recalled  a  conversation 
which  he  had  with  a  famous  speculator  who,  some 
time  in  the  seventies,  made  an  effort  to  corner  the 
wheat  market.  In  answer  to  a  request  for  an 
opinion  as  to  the  probability  of  success,  Mr.  Sterne 
said  that  the  attempt  must  inevitably  fail :  First, 
because  he  could  not  corner  the  wheat  market  of 
the  world,  and  that,  therefore,  from  every  part  of 
the  globe  wheat  would  be  rushed  in  to  supply  the 
demand,  and  that  he  must  either  buy  it  or  it  would 
deluge  the  market,  and  thus  depress  the  price 


vii      CORPORATE  RESPONSIBILITY     235 

below  its  natural  limit  ;  second,  because  any 
point  beyond  a  normal  price  for  wheat  would  bring 
into  use  substituted  articles  of  food ;  that  the 
withholding  from  the  market  of  a  food  stuff  did 
not  operate  in  the  same  manner  as  the  withholding 
from  the  market  of  an  article  of  merchandise 
suitable  for  shelter  or  clothing.  In  the  latter  case 
the  stock  in  use  is  exhausted,  and  must  sooner  or 
later  be  replenished.  In  the  case  of  food  the 
hunger  that  is  unfed  in  one  day  does  not  increase 
the  capacity  for  consumption  on  the  following  day, 
nor  intensify  the  consumption  at  the  end  of  the 
week  or  the  end  of  the  month.  When  there  is  an 
increase  of  supply,  therefore,  of  cereals  by  importa- 
tion, it  adds  to  a  stock  which  in  a  very  short  time  will 
be  larger  than  the  demand  can  take  up  ;  hence  there 
is  a  natural  limitation  which  is  generally  lost  sight 
of  in  all  efforts  for  the  cornering  of  a  food  supply. 
It  is  argued  that  the  trusts  have  a  tendency  to 
dismantle  and  put  out  of  use  industrial  establish- 
ments and  large  quantities  of  machinery,  and 
thereby  lessen  the  opportunity  for  employment. 
To  this  Mr.  Sterne  replies  that,  when  an  amount  of 
capital  has  by  competition  gone  into  a  business  in 
excess  of  that  which  could  be  profitably  employed 
therein,  there  is  continuing  waste  in  its  employ- 
ment. When  the  New  York  Central  Company 
acquired  the  West  Shore  Railroad,  which  was 
constructed  merely  for  the  purpose  of  dividing  an 
existing  business  already  adequately  performed,  had 
it  felt  satisfied  that  the  whole  of  the  business  which 
was  done  by  the  West  Shore  could  safely  and  satis- 
factorily have  been  done  on  the  New  York  Central, 


236          LIFE  OF  SIMON  STERNE      CHAP. 

what  loss  would  there  have  been  to  the  community 
if  the  rails  had  been  taken  up  and  sold  for  scrap 
iron,  the  ties  removed,  and  the  land  returned  to 
farming  purposes  ?  There  would  have  been 
greater  economy  in  the  management,  there  would 
have  been  a  great  saving  in  repairs,  and  a  still 
greater  saving  in  the  large  personnel  necessary  for 
the  carrying  on  the  West  Shore's  business.  If  it 
be  objected  that  the  constant  tendency  of  monopoly 
is  to  throw  a  large  number  of  persons  out  of  em- 
ployment, the  answer  is  that  if  any  given  result 
can  be  obtained  by  the  employment  of  200 
persons  instead  of  400,  assuming  that  the  200 
can  produce  as  much  as  the  400  had  produced 
before,  it  is  elementary  political  economy  to  find  a 
positive  gain  to  society  in  setting  free  the  labour 
of  200  men  who  had  been  employed  in  excess  of 
those  who  were  essential  for  the  accomplishment  of 
a  given  purpose.  Mr.  Sterne  admitted  that  it  was 
a  grave  defect  of  our  social  organisation  that  no 
method  had  yet  been  devised  by  which,  when  such 
an  improvement  in  machinery  or  economy  in  the 
methods  of  doing  business  takes  place,  those  who 
have  control  of  the  machinery  of  these  improve- 
ments can  be  required  to  make  in  some  form  direct 
compensation  to  those  who  are  thrown  out  of 
employment,  or  are  otherwise  made  to  suffer  for 
the  general  weal.  It  was  Mr.  Sterne's  opinion 
that  some  general  public  insurance  fund  should  be 
provided  for  those  who  must  bear  the  hardship 
of  the  first  shock  of  a  change  which  inures,  in  the 
long  run,  for  the  general  benefit. 

The  English  law  which  forbade  engrossing,  and 


vii       CORPORATE  RESPONSIBILITY     237 

trade  combinations,  was,  at  all  events,  consistent  ; 
because,  in  the  first  place,  it  fixed  a  price  at  which 
commodities  were  to  be  sold,  and  logically,  made 
any  contract  to  make  a  higher  price  unlawful ; 
and,  in  the  second  place,  it  forbade  all  combinations 
of  working-men  to  raise  the  price  of  their  labour 
by  any  understanding  or  agreement  among  them- 
selves. The  modern  law  against  trusts  is  accom- 
panied by  the  securing  of  absolute  freedom  of 
combination  among  working-men  to  raise  their 
wages,  and  entire  exemption  from  the  operation 
of  the  harsh  statutes  which  formerly  forbade  such 
action.  Mr.  Sterne  took  the  position,  that  so  long 
as  working-men  are  free  to  combine  to  raise  the 
price  of  their  labour,  whether  such  increase  is 
justified  by  the  conditions  of  trade  or  not,  trade 
combinations  to  raise,  if  possible,  the  price  of  com- 
modities, or  by  any  united  action  to  resist  the 
demands  of  the  trade  unions,  should  be  permitted 
to  the  employer,  and  that,  too,  in  the  interest  of 
the  working-men  themselves.  He  argued  that  all 
legislation  which  is  aimed  against  the  higher  law 
of  progress  in  a  community  must  necessarily  be 
abortive,  and  either  become  a  dead  letter  or  invite 
evasions  of  all  conceivable  kinds.  We  have  for 
twenty  years  endeavoured  to  prevent  trade  com- 
binations and  trusts,  but  they  still  exist  and  flourish. 
It  must,  therefore,  be  evident  that  this  kind  of 
legislation  lacks  the  essential  element  of  being  the 
crystallised  form  and  embodiment  of  the  most 
enlightened  public  opinion.  If  it  be  true  that 
these  failures  to  make  the  law  workable  are  so 
uniform  or  so  constant,  it  shows  that  the  combina- 


238          LIFE  OF  SIMON  STERNE      CHAP. 

tions  are  the  fruits  of  civilisation  and  progress, 
and  cannot  be  crushed,  but  can  only  be  temporarily 
checked  by  these  efforts  to  interpose  legal  clogs  to 
their  development. 

Returning  to  this  aspect  of  the  subject,  Mr. 
Sterne  said  that  when  a  powerful  tendency  of 
centralisation  of  both  capital  and  labour  has,  for 
a  considerable  period,  set  in,  there  is  unquestion- 
ably underneath  it  a  justification  which  cannot  be 
affected  by  demagogical  legislation  nor  have  its 
currents  diverted  either  by  law  or  abuse.  Within 
a  period  of  time  in  the  recollection  of  men  of 
advanced  middle  life,  the  very  simple  art  of  obtain- 
ing place  and  power  through  party  and  political 
activity  has  developed  into  a  scientific  method 
which  has  given  the  control  of  government  into 
the  hands  of  a  politician  class  which  is  equally 
potent  in  both  the  leading  party  organisations. 
The  differentiation  of  employment  has,  in  part, 
been  responsible  for  the  creation  of  this  class. 
In  part,  the  movement  which  created  it  has  par- 
taken of  the  general  spirit  of  centralisation  of 
power.  The  consequence  has  been  that  political 
guilds  have  been  formed  governed  by  an  unwritten 
law  which  excludes  from  all  participation  in  the 
work  of  Government  such  as  are  not  included  in 
their  membership.  The  intrusion  of  a  stranger  is 
looked  on  with  jealousy,  and  treated  with  a  feeling 
of  antagonism  akin  to  that  which  would  have  been 
displayed  in  the  Middle  Ages  if  a  shoemaker,  a 
tailor,  or  a  cooper  had  attempted  to  establish  him- 
self for  the  earning  of  an  independent  livelihood 
without  passing  through  his  trade-guild.  These 


vii       CORPORATE  RESPONSIBILITY     239 

organisations  have,  in  the  course  of  a  generation, 
perceptibly  modified,  and  will,  if  unchecked,  change 
in  another  fifty  years  the  nature  of  our  Govern- 
ment. Simultaneously  with  the  formation  of  these 
politician  guilds  in  their  modern  form,  came  a  per- 
ception of  the  pecuniary  value  of  legislation  as  a 
source  of  income  to  the  politician.  For,  while  the 
civil  service  in  the  executive  department  of  the 
Government  has  been  reformed,  so  as  to  loosen 
the  hold  of  the  politicians,  they  still  have  an  un- 
disputed control  of  the  legislative  departments  of 
the  Government,  and  their  power  to  exploit  in  full 
the  pecuniary  advantages  which  these  afford  has 
been  left  untouched  by  the  reformer.  It  seems 
probable  that  the  politician  class  has  found  more 
than  ample  compensation  for  what  it  has  lost  to 
the  people  on  the  executive  side  of  civil  service 
reform,  in  what  it  has  gained  on  the  legislative 
side  of  its  influence  by  the  development  and  ex- 
ploitation of  this  new  form  of  industry.  While  at 
no  period  in  the  political  history  of  the  United 
States  has  there  been  such  a  general  awakening  as 
within  the  last  twenty-five  years  on  the  intellectual 
side  of  politics,  as  exhibited  by  the  activity  on  the 
part  of  the  colleges  in  increasing  their  faculties 
capable  of  dealing  with  the  political  and  economic 
questions  which  press  for  solution,  and  by  the 
large  number  of  students  who  avail  themselves  of 
the  advantages  of  these  studies,  there  had  not  been 
during  the  history  of  the  United  States  so  mani- 
fest and  sinister  a  development  of  concentration  of 
power  in  the  hands  of  politicians,  resulting  in  what 
is  known  as  "  boss  rule." 


24o          LIFE  OF  SIMON  STERNE      CHAP. 

Mr.  Sterne  was  profoundly  impressed  with  the 
idea  that  the  creation  of  this  new  oligarchy  operat- 
ing through  the  forms  of  free  institutions,  con- 
stitutes a  menace  to  capital  of  very  threatening 
proportions,  and,  in  somewhat  lesser  degree,  to 
labour.  Against  this  power  there  is  for  the  present 
in  sight  but  one  peaceful  and  powerful  counter- 
force,  and  that  is,  the  concentration  of  capital  in 
the  form  of  trusts  or  other  combinations,  creating 
co-ordinate  powers  sufficient  to  hold  such  a  govern- 
ment by  bossism  in  check.  Every  effort  to  weaken 
this  concentration  of  capital  adds  new  strength  to 
boss  rule.  It  was,  therefore,  the  conclusion  reached 
by  Mr.  Sterne  that  in  view  of  this  new  menace  to 
thrift,  it  was  dangerous  to  encourage  the  prevailing 
tendency  toward  an ti- trust  legislation  and  the 
enforcement  of  laws  against  all  forms  of  combina- 
tion of  capital.  Considering  that  the  tendency 
toward  concentration  of  political  effort  and  the 
wielding  of  political  power  through  persons  having 
no  official  responsibility  to  the  people  is  constantly 
becoming  more  accentuated,  all  weakening  of 
capital  under  such  circumstances  tends  to  make  it 
a  prey  to  those  who  are  living,  under  the  guise 
of  taking  part  in  the  government,  upon  the 
earnings  of  the  producers  of  things  useful  to 
the  community.  Therefore,  without  concentration 
of  capital  so  great  as  to  make  it  capable  of  re- 
sisting with  like  force  the  tendency  of  the  politician 
class,  the  only  industry  in  which,  in  process  of  time, 
large  fortunes  could  be  made  and  accumulated 
would  be  the  industry  of  the  politician. 

This  later  view  of  the  question  of  corporate 


vii      CORPORATE  RESPONSIBILITY     241 

responsibility  may  seem  somewhat  in  conflict  with 
that  recorded  fifteen  years  before,  but  the  apparent 
contradiction  is  due  rather  to  the  way  in  which 
the  subject  is  approached  and  the  point  from  which 
it  is  regarded,  than  to  any  radical  change  of 
opinion  on  the  subject.  Mr.  Sterne  was  too  honest 
and  courageous  a  seeker  after  truth  to  be  specially 
careful  about  maintaining  a  reputation  for  uniform 
consistency  of  opinion.  But  on  one  point  he  is 
uncompromisingly  consistent  in  his  views  of  cor- 
porate responsibility,  and  that  is  the  obligation 
of  trusteeship  devolving  upon  those  who  control 
a  majority  of  the  stock  of  any  corporation. 
He  achieved  a  somewhat  remarkable  professional 
triumph  in  the  opinion  of  the  Court  of  Appeals 
delivered  in  favour  of  his  contention,  and  strictly 
in  harmony  with  his  views  in  the  case  of  the  New 
York  and  Northern  Railway  Company  and  certain 
appellants  from  judgments  of  the  lower  courts  for 
whom  he  acted  as  counsel,  and  on  whose  behalf  he 
found  occasion  to  urge  certain  principles  of  cor- 
porate trusteeship  which  had  been  allowed  to  fall 
into  neglect.  The  original  action  was  brought  to 
foreclose  a  second  mortgage  upon  the  property  of 
the  New  York  and  Northern  Railway  Company 
made  by  it  and  given  to  the  trustees — the  Farmers' 
Loan  and  Trust  Company — to  secure  the  payment 
of  second  mortgage  bonds  issued  by  that  Company 
to  the  amount  of  $3,200,000.  The  appellants 
being  holders  of  a  minority  of  the  Company's  stock 
protested  against  this  foreclosure  on  the  following 
among  other  grounds: — That  the  action  was  brought 
in  pursuance  of  an  unlawful  plan  and  combination 


242          LIFE  OF  SIMON  STERNE      CHAP. 

by  and  between  the  New  York  Central  and  Hudson 
River  Railroad  Company  and  others  acting  for  it, 
to  render  the  stock  of  the  New  York  and  Northern 
Railway  Company  valueless,  and  to  secure  its 
property  ;  that  in  order  to  carry  this  plan  into 
effect,  the  New  York  Central  Company  purchased 
a  large  number  of  the  second  mortgage  bonds  and 
a  majority  of  the  stock  of  the  New  York  and 
Northern,  thereby  acquiring  control  of  its  manage- 
ment ;  that  the  affairs  of  the  New  York  and 
Northern  were  so  conducted  by  the  directors  and 
officers  appointed  in  the  interest  of  the  New  York 
Central  that  the  obligations  of  the  former  Company 
could  not  be  met,  nor  the  default  on  the  second 
mortgage  bonds  made  good. 

In  the  trial  court  the  appellants  offered  evidence 
to  show  the  character,  extent,  and  purpose  of  the 
alleged  mismanagement  by  the  Central  Company 
of  the  property  of  the  New  York  and  Northern, 
but  the  Court  excluded  all  such  evidence  as 
immaterial  and  irrelevant.  The  General  Term 
affirmed  the  position  taken  by  the  Special  Term, 
which  was,  briefly,  that  all  that  was  requisite  for 
the  plaintiff  Trust  Company  to  prove  in  suing  for 
foreclosure  was  the  making  of  the  mortgage,  its 
record,  the  issue  of  the  bonds,  the  default,  the 
acquisition  of  the  property,  the  absence  of  other 
legal  proceedings,  and  the  amount  due.  In  this, 
the  Court  of  Appeals,  in  an  opinion  written  by 
Justice  Martin,  held  that  the  Courts  below  were 
in  error.  Before  passing  on  the  rulings  made  by 
the  trial  Court,  the  Appellate  Court  discussed 
the  question  whether  a  corporation,  purchasing  a 


vii       CORPORATE  RESPONSIBILITY     243 

majority  of  the  stock  of  another  corporation,  may 
thus  obtain  control  of  its  affairs,  cause  it  to  divert 
the  income  from  its  business,  or  to  refuse  business 
which  would  enable  it  to  pay  the  interest  for  which 
it  was  in  default,  and  then  institute  an  action  in 
equity  to  enforce  its  obligations  for  the  purpose 
of  obtaining  control  of  its  property  at  less  than 
its  value,  to  the  manifest  injury  of  the  minority 
stockholders.  Justice  Martin  and  his  associates 
held  that  with  these  facts  established,  a  court  of 
equity  would  not  lend  its  aid  to  such  a  stockholder 
by  enforcing  the  mortgage  and  decreeing  a  fore- 
closure and  sale  of  the  mortgaged  property,  at  its 
request,  in  its  behalf,  and  to  accomplish  such  a 
purpose. 

The  salutary  rule  was  laid  down  by  the  Court 
that  where,  as  in  this  case,  a  majority  of  the  stock 
is  owned  by  a  corporation  or  a  combination  of 
individuals,  and  it  assumes  the  control  of  another 
company's  business  and  affairs  through  its  control 
of  the  officers  and  directors  of  the  corporation,  it 
becomes,  for  all  practical  purposes,  the  corporation 
of  which  it  holds  a  majority  of  the  stock,  and 
assumes  the  same  trust  relation  toward  the  minority 
stockholders  that  a  corporation  itself  usually  bears 
to  its  stockholders.  It  is  a  well-settled  principle, 
however,  much  disregarded  in  practice,  that  the 
law  requires  of  the  majority  of  the  stockholders 
the  utmost  good  faith  in  their  control  and  manage- 
ment of  the  corporation  as  regards  the  minority, 
and  that  in  this  respect  the  majority  stands  in  much 
the  same  attitude  toward  the  minority  that  the 
directors  sustain  toward  all  the  stockholders.  The 


244          LIFE  OF  SIMON  STERNE      CHAP. 

Court  held  that  when  the  New  York  Central 
Company  purchased  the  stock  and  bonds  of  the 
New  York  and  Northern,  thus  obtaining  a  con- 
trolling interest  in  its  affairs,  "for  the  avowed 
purpose  of  destroying  it,  to  serve  a  purpose  entirely 
outside  of  that  for  which  it  was  organised,  and  in 
hostility  to  it,  it  becomes  clear  that  as  such  stock- 
holder it  owed  a  duty  to  the  minority  stockholders, 
that  the  law  implied  a  quasi-trust  upon  its  part, 
and  that  a  Court  of  Equity  will  not  aid  it  in  the 
destruction  of  that  corporation  and  a  confiscation 
of  its  property,  although  it  held  a  majority  of  its 
stock  and  the  required  amount  of  its  bonds." 

Thus,  mainly  through  the  efforts  of  Mr.  Sterne, 
the  law  of  this  State  in  regard  to  the  responsibility 
for  corporate  management,  received,  in  several  very 
important  particulars,  a  new  and  authoritative  in- 
terpretation. It  has  long  been  established  in  the 
private  relations  of  life  that  one  party  cannot  make 
impossible  the  performance  of  a  contract  and  en- 
force a  penalty  for  its  non-performance  by  another. 
Through  this  decision  of  the  Court  of  Appeals 
that  became  part  of  the  law  of  corporations.  One 
may  be  the  creditor  of  a  corporation  while  holding 
its  stock,  and  may  be  able  to  enforce  his  right 
as  creditor  of  the  corporation  against  his  fellow- 
stockholders  ;  but  he  cannot  buy  stocks  and  bonds 
with  the  avowed  purpose,  through  the  active  power 
of  the  bond  and  the  passivity  of  the  stockholders, 
to  work  the  destruction  of  the  corporate  entity 
and  the  absorption  of  its  property.  This  the 
Court  held  to  be  taking  an  unfair  advantage,  to 
which  it  refused  to  lend  its  aid.  The  oppression 


vii       CORPORATE  RESPONSIBILITY     245 

of  minority  stockholders  by  the  majority  had  so 
long  been  practised  in  the  management  of  corpora- 
tions that  it  had  come  to  be  regarded  as  a  kind  of 
vested  right,  the  disturbance  of  which  was  incon- 
sistent with  the  prosecution  of  accepted  methods 
of  speculation.  Not  the  least  important  part  of 
the  decision  in  question,  which  has  become  a  lead- 
ing authority,  was  the  finding  of  the  Court  that  a 
trust  relation  arises  the  moment  that  a  stockholder 
has  in  his  own  possession  or  under  his  control  a 
majority  of  the  stock.  That  possession  confers 
the  power  of  oppression,  and  from  such  a  power 
the  Court  implied  the  existence  of  a  trust  which  it 
was  part  of  its  function  to  see  preserved  against 
abuse. 

The  great  weight  which,  in  the  judicial  tribunals 
of  the  country,  was  attached  to  a  decision  of  the 
New  York  Court  of  Appeals  has  rendered  this  one 
— delivered  on  October  20,  1896 — of  the  greatest 
value  as  a  weapon  of  defence  for  minority  stock- 
holders against  majority  oppression  or  spoliation. 
The  exceptional  value  of  the  decision  consists  in 
the  fact  that  it  meets  a  clear  issue  without  evasion 
or  ambiguity,  and  furnishes  a  luminous  exposition 
of  what  a  Court  of  Equity  can  be  trusted  to  do 
for  the  protection  of  a  minority  of  the  stockholders 
of  a  corporation  exposed  to  a  process  not  clearly 
distinguishable  from  highway  robbery. 


CHAPTER   VIII 

THE    TWEED    RING    AND    THE    COMMITTEE 
OF    SEVENTY 

THE  municipal  corruption  of  New  York  in  the 
later  sixties  has  passed  into  history.  But  the  full 
measure  of  its  proportions  was  realised  by  very  few 
even  among  those  who  took  an  intelligent  interest 
in  the  public  affairs  of  that  time.  That  Mr. 
Sterne  had  pretty  clearly  apprehended  the  character 
and  source  of  the  evil,  is  apparent  from  several 
passages  of  his  address  on  Representative  Govern- 
ment, delivered  at  the  Cooper  Union  on  February 
27,  1869.  In  one  of  these  he  says — 

The  great  cancer  spot  of  our  body  politic — the  cor- 
ruption of  our  office-holders,  consequent  upon  the  low 
character  in  point  of  intellect  and  culture  of  the  incumbents 
of  our  public  offices — shows  that  in  some  one  important 
particular  our  system  must  be  vicious,  and  our  policy 
wrong  ;  that  we  either  have  delegated  too  much  power, 
or  distributed  it  badly,  or  both  ;  and  that  our  public  life 
is  not  in  accordance  with  the  rules  of  political  hygiene. 

In  another,  in  referring  to  the  evidences  of  the 
insidious  disease  from  which  the  body  politic  was 
suffering,  he  says — 

246 


CHAP,  viii     THE  TWEED  RING  24? 

You  will  find  that  our  merchants  are  building  palaces 
for  the  storing  of  merchandise.  You  will  find  in  every 
department  of  the  mechanical  and  fine  arts  a  constant 
and  steady  progress.  Dilettanteism  is  rapidly  giving  way 
to  thoroughness.  Even  in  our  works  of  benevolence,  we 
are  more  mindful  of  the  duties  which  we  owe  to  our 
fellowmen  than  we  have  been  heretofore.  We  dive  with 
a  passionate  charity  into  the  darkest  and  remotest  lurking- 
places  of  misery  and  of  vice.  If  crime  is  on  the  increase 
it  is  because  public  justice  is  less  repressive,  not  because 
private  effort  does  not  do  its  full  duty  in  removing  two  of 
its  mainstays — ignorance  and  drunkenness.  And  yet  in 
the  midst  of  all  this  progress  there  is  one  sore  spot — 
inflamed,  ulcerated,  and  mortified — our  City's  Govern- 
ment. This  evil  is  not  due  to  one  political  party  more 
than  to  another.  There  is  nothing  in  the  tenets  of  either 
party  which  should  make  it  a  cover  for  spoliation  and 
fraud.  But  it  arises  from  the  very  existence  of  party  and 
party  necessities. 

The  vices  of  the  City  Government  in  New 
York  are  of  somewhat  ancient  date.  A  Republican 
pamphleteer  making,  in  1786,  a  bitter  attack  on 
the  rule  of  the  Federalists  found  it  to  be  "a  matter 
of  astonishment  that  a  city  so  enlightened,  and 
which  has  so  eminently  contributed  to  the  restora- 
tion of  public  liberty,  should  have  so  long  submitted 
to  the  abuses  of  its  municipal  administration."  He 
was  as  much  impressed  as  Mr.  Sterne  was,  eighty 
years  later,  with  the  low  character  in  point  of 
intellect  and  culture  of  the  incumbents  of  our 
public  offices,  for,  in  describing  the  character  of 
the  men  who  composed  the  majority  of  the  Common 
Council,  he  said :  "  When  we  consider  the  slender- 
ness  of  their  influence  as  individuals  ;  when  we 
contemplate  the  paucity  of  their  talents,  we  are 


LIFE  OF  SIMON  STERNE      CHAP. 

impressed  with  mingled  emotions  of  surprise  and 
indignation  that  men  so  destitute  of  learning  should 
have  been  permitted  to  become  the  despoilers  of 
the  rights  of  their  fellow-citizens."  Each  succeed- 
ing generation  seems  to  have  echoed  the  same 
complaint  which  this  critic  had  to  make  about  the 
City  Government  of  New  York  at  a  time  when  its 
population  did  not  exceed  24,000.  In  1820,  with 
a  population  of  about  120,000,  and  the  suffrage 
restricted  to  property  owners,  New  York  was  mis- 
governed ;  in  1850,  with  a  population  of  500,000 
and  manhood  suffrage  in  untrammelled  operation, 
the  misgovernment  of  the  city  was  still  notorious. 
If  the  character  of  the  City  Council  could  be  a 
subject  of  adverse  criticism  when  the  Republic  was 
young,  it  had  become  a  public  scandal  long  before 
the  Union  was  three-quarters  of  a  century  old. 
Thus  it  happened  that  when  the  Legislature  of  1857 
set  about  abridging  the  powers  of  the  two  boards 
of  which  that  body  was  composed,  there  was  no 
disposition  to  protest  on  the  part  of  the  business 
community  or  of  the  general  body  of  taxpayers. 
In  the  estimation  of  most  of  these,  New  York  was 
the  worst  governed  city  on  the  Continent.  Some 
of  them  may  have  recognised  the  fact  that  it  had 
come  to  be  so  largely  by  their  own  neglect,  but 
they  were  so  profoundly  impressed  by  their  inability 
to  cope  with  the  rowdies,  jobbers,  and  wire-pullers 
who  controlled  elections,  that  they  welcomed  any 
legislation  calculated  to  neutralise  the  power  of 
the  ignorant  and  purchasable  vote,  which  did  not 
demand  of  them  any  sustained  exercise  of  vigilance 
or  political  activity. 


vni  THE  TWEED  RING 


249 


Mr.  Sterne  perceived  very  clearly  the  useless- 
ness  of  such  a  remedy,  and,  in  the  address  already 
quoted  from,  he  tried  to  impress  his  convictions 
on  the  minds  of  his  fellow-citizens.  His  remedy 
was — 

Decentralise  government  to  the  utmost  possible  extent, 
give  to  each  locality  the  absolute  power  of  self-government, 
and  under  no  pretext  or  seemingly  valid  excuse  take  such 
power  from  the  locality.  If  New  York  City  is  given 
over  to  plunder  by  reason  of  the  exercise,  on  its  part,  of 
such  a  power,  let  the  bad  grow  worse  until  our  merchants, 
our  bankers,  our  lawyers,  and  our  industrial  classes  find 
it  to  their  interest  to  leave  their  counting-rooms  and 
stock  boards,  their  briefs  and  their  workshops,  to  take  an 
interest  in  our  city's  politics.  And,  as  in  no  civilised 
community  in  this  world  having  any  social  cohesiveness, 
the  true  and  the  trustworthy  do  not  outnumber  the 
designing  and  the  criminal,  the  remedy  will  find  itself. 
You  therefore  leave  to  the  general  government  of  the 
State  such  matters  only  which  appertain  to  the  general 
interest  of  all  its  inhabitants,  and  place  nearer  to  the 
fountains  of  power,  the  people,  all  such  matters  in  which 
they,  as  inhabitants  of  a  locality,  are  especially  interested. 
The  more  you  centralise,  the  more  you  take  from  the 
people  themselves  the  power  to  supervise  the  expendi- 
ture, the  more  you  delegate,  the  greater  your  dependence 
upon  the  machinery  of  party.  If  the  inhabitants  of  every 
street  in  the  city  of  New  York  were  compelled  to  make 
their  own  contracts,  instead  of  the  city  making  them  for 
them,  there  would  be  less  corruption,  greater  competition 
between  individual  contractors,  and  greater  opportunity 
for  the  property  owners  to  examine  the  relative  proportion 
of  services  to  expenditures. 

The  correctness  of  Mr.  Sterne's  diagnosis  of  the 
political  evils  with  which  the  city  of  New  York 


250          LIFE  OF  SIMON  STERNE      CHAP. 

was  afflicted  at  that  time,  was  fully  borne  out  two 
years  later  by  an  observer  so  expert  and  clear- 
sighted as  Mr.  Samuel  J.  Tilden.  In  tracing  the 
development  of  the  by-partisan  system  of  spoliation, 
out  of  which  grew  the  Tweed  Ring,  Mr.  Tilden 
pointed  out  that  the  earlier  Ring  was  one  between 
the  Republican  majority  in  Albany  and  a  few 
Democratic  officials  in  New  York.  The  Republi- 
can partners,  however,  had  the  superior  power 
since  they  could  create  such  institutions  as  the 
Board  of  Supervisors,  and  could  abolish  them  at 
will.  They  could  extinguish  offices  and  substitute 
others  ;  change  the  laws  which  fixed  their  duration, 
functions,  and  responsibilities,  and  nearly  always 
could  invoke  the  executive  power  of  removal. 
The  Democratic  members  of  the  combination  were 
under  the  necessity  of  submitting  to  whatever 
terms  the  Albany  legislators  imposed,  and  having 
found  out  by  experience  that  all  real  power  was  in 
Albany,  they  began  to  go  there  in  person  to  share 
it.  The  lucrative  city  offices — subordinate  appoint- 
ments which  each  head  of  department  could  create 
at  pleasure — with  salaries  at  his  discretion,  distri- 
buted among  the  friends  of  the  legislators  ;  con- 
tracts ;  money  contributed  by  city  officials,  assessed 
on  their  subordinates,  raised  by  jobs  under  the 
departments,  and  sometimes  taken  from  the  City 
Treasury,  were  the  pabulum  of  corrupt  influence 
which  shaped  and  controlled  all  legislation.  Every 
year  the  system  grew  worse  as  a  governmental 
institution,  and  became  more  powerful  and  corrupt. 
The  executive  departments  gradually  swallowed  up 
all  local  powers,  and  themselves  were  mere  deputies 


viii  THE  TWEED  RING  251 

of  legislators  at  Albany,  on  whom  alone  they  were 
dependent.  The  Mayor  and  Common  Council 
ceased  to  have  any  recognisable  authority,  and  lost 
all  practical  influence.  In  the  words  of  Mr.  Tilden, 
"  There  was  nobody  to  represent  the  people  of 
the  city  ;  there  was  no  discussion,  there  was  no 
publicity.  Cunning  and  deceptive  provisions  of 
law  concocted  in  the  secrecy  of  the  departments, 
commissions  and  bureaus,  agreed  upon  in  the 
lobbies  at  Albany  between  the  city  officials  and  the 
legislators  or  their  go-betweens,  appeared  upon  the 
statute-books  after  every  session.  In  this  manner 
all  institutions  of  Government,  all  taxation,  all 
appropriations  of  money  for  our  million  of  people 
were  formed.  For  many  years  there  was  no  time 
when  a  vote  at  a  city  election  would,  in  any 
practical  degree  or  manner,  affect  the  City  Govern- 
ment/' 

Thus  the  ground  became  fully  prepared  for  the 
master  combination  of  Tweed.  The  Tweed  Ring 
was  not  a  mere  passing  phenomenon  in  the  politics 
and  administration  of  New  York  City.  It  exercised, 
for  a  time,  a  controlling  influence  on  the  politics 
of  the  State  ;  it  had  its  plans  laid  for  the  capture 
of  the  Presidency  of  the  United  States  and  for 
the  application  of  its  characteristic  methods  to 
the  conduct  of  the  Federal  Government.  That 
the  financial  demoralisation  of  the  war  period — the 
unheard-of  scale  of  national  expenditures,  the 
jobbery  in  contracts,  the  sudden  growth  of  private 
fortunes,  the  development  of  the  gambling  spirit 
incidental  to  the  varying  fortunes  of  civil  conflict, 
and  the  changes  in  value  of  an  artificial  currency — 


252          LIFE  OF  SIMON  STERNE      CHAP. 

had  much  to  do  with  promoting  official  corruption 
in  New  York,  there  can  be  no  question.  But  it  is 
equally  certain  that  the  misgovernment  of  New 
York  had  its  tap-root  in  the  abuses  to  which 
the  electoral  system  was  systematically  subjected. 
Under  the  Tammany  system  of  which  Tweed  was 
a  characteristic  product,  the  cruder  methods  of 
repeating,  ballot-box  stuffing,  the  wholesale  issue  of 
fraudulent  certificates  of  naturalisation,  were  much 
in  vogue.  But  back  of  them  all  was  the  subtler 
and  less  easily  eradicated  vice,  which  Mr.  Sterne 
never  wearied  in  exposing — the  failure  to  preserve 
a  representative  system  of  government.  He  in- 
sisted, in  the  heyday  of  Tammany  corruption  of 
the  ballot-box,  as  strenuously  as  he  insisted  thirty 
years  later,  that  official  corruption  in  New  York 
found  its  chief  support  in  a  system  under  which 
nearly  one-half  the  community  was  virtually  dis- 
franchised. 

It  was  but  little  over  two  years  after  Mr. 
Sterne's  warning  of  February  1869,  that  the 
citizens  of  New  York  had  a  rude  reminder  of  the 
utter  failure  of  what  is  called  partisan  responsibility 
to  keep  the  administration  of  city  affairs  out  of 
the  hands  of  a  set  of  the  most  unscrupulous 
gang  of  thieves  known  to  modern  history.  The 
corrupt  combination  which  became  notorious  as 
the  Tweed  Ring,  entered  into  complete  control  of 
the  government  of  the  city  of  New  York  on 
January  i,  1869,  and  held  it  until  September  16, 
1871.  Within  this  period  of  two  years  eight  and 
a  half  months  the  debt  of  the  city  and  county, 
after  making  due  allowance  for  unliquidated 


viii  THE  TWEED  RING  253 

obligations,  increased  from  $36,000,000  to 
$116,000,000.  By  far  the  larger  part  of  the 
$80,000,000  thus  added  to  the  mortgage  on 
the  taxable  property  of  the  city  was  either 
squandered  or  stolen  outright.  Adding  to  this 
stupendous  total  of  wasteful  and  corrupt  expendi- 
ture which  can  be  traced  in  the  growth  of  the 
bonded  debt,  the  large  sums  taken  from  the  pro- 
ceeds of  taxation  and  from  the  amounts  raised 
by  assessments  for  local  improvements,  it  has 
been  held  to  be  entirely  within  the  mark  to 
say  that  the  brief  term  of  power  enjoyed  by 
the  Tweed  Ring  cost  the  taxpayers  of  New 
York  not  less  than  $100,000,000.  When  the 
New  Tork  Times  published  on  July  29,  1871, 
the  figures  by  which  the  people  of  New  York 
were  finally  made  aware  of  the  enormous  scale  on 
which  they  were  being  robbed,  they  found  the 
machinery  of  justice  as  completely  under  control 
of  their  plunderers  as  that  of  administration. 
But,  when  the  crisis  came,  Mr.  Sterne's  con- 
fidence was  fully  justified  in  the  readiness  with 
which  merchants,  bankers,  lawyers,  and  artisans 
left  their  counting-rooms  and  stock  boards,  their 
briefs  and  their  workshops,  to  take  an  interest  in 
city  politics.  It  was  out  of  this  movement  that 
there  grew  the  Committee  of  Seventy  —  a  body 
consisting  of  representative  citizens  of  all  shades 
of  party  opinion  who  had  sunk  their  individual 
preferences  in  matters  of  national  and  State  politics 
in  a  common  effort  to  rescue  New  York  from  the 
slough  of  bankruptcy  and  disgrace  into  which  it 
had  fallen  under  the  rule  of  the  Ring. 


254          LIFE  OF  SIMON  STERNE       CHAP. 

The  Committee  had  its  origin  in  a  public 
meeting  attended  by  the  foremost  men  of  the 
city,  held  at  Cooper  Union  on  September  4,  1871. 
It  is  significant  of  the  estimation  in  which  Mr. 
Sterne  was  already  held  by  some  of  the  most 
eminent  of  his  fellow-citizens,  and  of  his  associates 
at  the  Bar,  that  he  was  chosen  to  fill  the  office  of 
Secretary  of  this  body.  The  functions  delegated 
to  the  Committee  of  Seventy  had  a  gravity  and 
importance  probably  beyond  anything  ever  com- 
mitted to  such  an  organisation.  They  were, 
briefly,  as  follows  : — 

To  demand  a  full  exhibition  of  all  the  accounts  of  the 
city  and  county,  and  an  explicit  statement  of  all  the 
persons  to  whom,  and  the  pretences  on  which,  the  large 
payments  of  the  past  two  years  and  a  half  have  been 
made ;  to  enforce  any  remedies  which  now  exist  to 
obtain  this  information,  if  it  is  refused,  and  to  recover 
whatever  sums  of  money  have  been  fraudulently  or 
feloniously  abstracted  ;  and  also  to  press  upon  the  Legis- 
lature and  Governor  of  the  State  such  measures  of  legis- 
lation and  action  as  may  be  necessary  or  proper  to  enforce 
the  existing  laws,  and  to  supply  their  defects,  and  to 
remove  the  causes  of  the  present  abuses  ;  and  finally, 
to  assist,  sustain,  and  direct  a  united  effort,  by  the 
citizens  of  New  York,  without  reference  to  party,  to 
obtain  a  good  government  and  honest  officers  to  admin- 
ister it. 

Mr.  Sterne  not  only  performed  the  arduous 
duties  of  general  secretary  to  the  Committee 
during  the  two  years  of  its  existence,  but  he  was 
an  active  member  of  its  most  important  com- 
mittees, and  bore  the  lion's  share  in  the  work  of 
preparing  reports,  drafting  resolutions,  and  keeping 


vin  THE  TWEED  RING  255 

track  of  the  details  of  the  multifarious  labours 
of  this  somewhat  unwieldy  organisation.  He  was 
a  member  of  the  Committee  on  Remedies,  of  the 
Committee  on  Elections,  and  of  the  Committee 
on  Legislation.  The  high  standard  of  ability 
represented  in  these  bodies  by  which  the  real 
work  of  the  Committee  was  done,  may  be  inferred 
from  the  composition  of  the  Committee  on  Legis- 
lation. Its  chairman  was  Edward  Salomon,  and 
its  members  comprised  the  following  well-known 
names  : — Joseph  B.  Varnum,  Henry  N.  Beers, 
John  A.  Dix,  Edward  Cooper,  William  C.  Barrett, 
Benjamin  B.  Sherman,  Edwards  Pierrepont,  Joseph 
H.  Choate,  Henry  Nicoll,  Samuel  B.  Ruggles, 
Theodore  W.  Dwight,  and  James  M.  Brown. 
Most  of  these  men  had  a  longer  experience  in 
public  affairs  than  Mr.  Sterne,  and  the  lawyers 
among  them  were  all  his  seniors  at  the  Bar,  but 
all  of  them  were  ready  to  defer  to  his  clear  judg- 
ment, and  to  place  in  his  hands  the  formulation  of 
the  policy  best  fitted  to  the  extraordinary  crisis 
which  they  were  called  upon  to  meet. 

Within  a  month  after  the  formation  of  the 
Committee  of  Seventy,  a  partial  investigation  had 
been  made  of  the  fraudulent  operations  of  the 
Ring  with  the  following  result : — ( I )  The  debt 
of  the  city  was  found  to  be  doubling  every  two 
years;  (2)  $3,200,000  had  been  paid  for  repairs 
on  armouries  and  drill -rooms,  the  actual  cost 
of  which  was  less  than  $250,000 ;  (3)  over 
$  1 1 ,000,000  had  been  charged  for  outlays  on  an 
unfinished  court-house,  for  which  building,  com- 
pleted, an  honest  estimate  of  real  cost  would  be 


256          LIFE  OF  SIMON  STERNE      CHAP. 

less  than  $3,000,000  ;  (4)  safes,  carpets,  furniture, 
cabinet-work,  painting,  plumbing,  gas,  and  plaster- 
ing had  cost  $7,289,466,  which  were  valued  by 
competent  persons,  after  a  careful  examination, 
at  $624,180;  (5)  $460,000  had  been  paid  for 
$48,000  worth  of  lumber;  (6)  the  printing, 
advertising,  stationery,  etc.,  of  the  city  and  county 
had  cost  in  two  years  and  eight  months  $7, 168,2 1 2 ; 
(7)  a  large  number  of  persons  were  found  to  be 
on  the  pay-rolls  of  the  city  whose  services  were 
neither  rendered  nor  required;  (8)  figures  upon 
warrants  and  vouchers  had  been  fraudulently 
altered,  and  payments  had  been  repeatedly  made 
on  forged  indorsements.  These  were  mere  surface 
indications  of  the  extent  of  the  Ring  frauds,  but 
they  afforded  the  standard  by  which  to  measure 
the  scale  on  which  the  city  was  robbed. 

The  official  title  of  the  Committee  of  Seventy 
was  "  The  Executive  Committee  of  Citizens  and 
Taxpayers  for  the  Financial  Reform  of  the  City 
of  New  York,"  but  its  object  being  to  secure  for 
the  city  and  county  of  New  York  good  govern- 
ment and  an  honest  administration  of  public  trusts  ; 
the  election  of  fitting  depositaries  of  the  public 
confidence  was,  obviously,  a  very  important  de- 
partment of  its  work.  As  it  happened,  it  was 
impossible  to  reach  the  chief  malefactors  through 
the  ballot-box.  Under  the  instrument  known  as 
the  Tweed  Charter,  the  term  of  the  boards  of 
aldermen  and  assistant  aldermen  holding  office 
in  1870  had  been  extended  to  January  I, 
1872,  and  discretion  was  given  to  the  Mayor  to 
extend  their  term  of  office  until  the  following 


viii  THE  TWEED  RING  257 

June.  The  Mayor  himself  held  office  till 
January  i,  1873,  and  the  only  important  officers 
to  be  elected  were  the  representatives  of  the 
county  in  the  State  Senate  and  Assembly.  The 
objective  point  of  the  Seventy's  Committee  on 
Election  was  therefore  the  defeat  of  the  Ring 
candidates  for  these  offices.  The  appeal  issued 
to  the  voters  of  New  York  by  the  Committee 
smacks  strongly  of  the  style  of  Mr.  Sterne.  It 
was  in  part  as  follows  : — 

Resolved — That  the  citizens  of  this  city  are  earnestly 
entreated  to  make  the  reform  of  their  own  Government 
the  one  controlling  issue  at  the  next  election,  to  support 
no  man  for  office,  and  especially  for  the  Legislature  of 
the  State,  no  matter  what  may  be  his  party  name,  who 
is  not  known  to  be  both  honest  and  incorruptible,  and 
determined  and  distinctly  pledged,  so  far  as  he  is  able, 
whatever  may  be  the  consequences,  to  reform  the  city 
of  New  York  ;  and  that  our  fellow-citizens  throughout 
the  State  are  entreated  to  join  in  the  effort  to  redress  the 
evils  which  concern  them  hardly  less  than  ourselves.  We 
appeal  to  citizens  of  both  parties  to  save  us  and  the  State 
from  the  possibility  of  such  another  degradation  as  has 
fallen  on  all  of  us.  ...  No  private  business,  no  partisan 
end,  can  be  so  important  to  any  right-minded  citizen  as 
the  plain  duties  that  are  thrown  on  him  by  recent  deplor- 
able revelations. 

It  was  inevitable  that  the  Democratic  organisa- 
tion of  the  State  should  be  held  responsible  for 
the  iniquities  of  the  Tweed  Ring,  and  that  popular 
indignation  over  the  abuse  of  public  trust  in  the 
city  of  New  York  should  be  visited  on  the  party 
to  which  most  of  the  members  of  the  thieving 
combination  owed  allegiance.  Accordingly,  at 


258          LIFE  OF  SIMON  STERNE      CHAP. 

the  Fall  election  of  1871  there  was  a  complete 
reversal  of  the  results  of  the  two  preceding  elec- 
tions. In  the  State  Senate,  which  had  been  chosen 
in  1869,  there  were  17  Democrats;  in  the  one 
elected  in  1871  there  were  but  7.  The  city 
and  county  of  New  York  had  sent  20  Tammany 
Democrats  to  the  Assembly  in  1870;  in  1871 
only  6  managed  to  pull  through.  Though  the 
master- thief,  William  M.  Tweed,  had  been  re- 
turned to  the  State  Senate  by  a  constituency  of 
more  than  ordinary  moral  obtuseness,  his  power 
was  absolutely  broken,  and  proceedings  had  already 
been  begun  to  bring  him  to  the  Bar  of  Justice, 
On  December  20,  1871,  Tweed  was  arrested  in 
his  office  under  an  order  issued  by  Judge  Learned 
of  Albany,  upon  an  affidavit  of  Samuel  J.  Tilden, 
in  a  civil  action  brought  by  the  State  for  the 
recovery  of  $6,000,000  which  Tweed  was  charged 
with  having  stolen  from  the  city.  This  was  the 
sum  which  had  been  disposed  of  by  the  so-called 
interim  Board  of  Audit  of  notorious  memory, 
which  met  but  once  and  adopted  a  resolution 
setting  forth  that  all  claims  against  the  county  of 
New  York  incurred  prior  to  1870,  and  which 
were  certified  to  by  William  M.  Tweed,  then 
President  of  the  Board  of  Supervisors,  and  Joseph 
D.  Young,  clerk  of  the  same,  should  be  regarded 
as  valid  and  should  be  paid.  The  county  auditor, 
one  James  Watson,  was  a  notorious  rascal,  and  it 
was  his  duty  to  collect  from  the  Committees  of 
the  Boards  of  Supervisors  all  the  claims,  chiefly 
relating  to  the  county  court-house,  on  which 
even  that  unscrupulous  body  had  not  found 


vin  THE  TWEED  RING  259 

courage  enough  to  act.  In  addition  to  these, 
claims  were  manufactured,  for  which  there  was 
not  the  slightest  basis,  and  were  duly  certified  by 
Mayor  Hall,  Controller  Connolly,  and  "Boss" 
Tweed  without  examination.  These  certifications 
amounted  to  a  sum  slightly  exceeding  $6,312,000. 
The  controller  issued  and  sold  bonds  to  that 
amount,  and  immediately  after  the  pretended 
audit  and  allowance  of  each  claim,  a  check  or 
warrant  in  favour  of  the  certified  claimant  was 
signed  by  the  controller,  the  Mayor,  and  the  clerk 
of  the  Board  of  Supervisors. 

Mr.  Charles  O'Conor's  succinct  legal  sum- 
mary of  this  proceeding  was  as  follows  :  "  The 
accounts  or  claims  so  audited  were  all  false,  fic- 
titious, and  fraudulent ;  they  were  made  up  by 
fraud  and  collusion  between  James  Watson  and 
Andrew  J.  Garvey,  James  H.  Ingersoll  and  Elbert 
A.  Woodward  (all  agents  and  creatures  of  Tweed), 
and  payments  of  such  warrants  were,  pursuant  to 
a  corrupt,  fraudulent,  and  unlawful  combination 
and  conspiracy  to  that  end,  agreed  to  be  divided, 
and  were  divided  accordingly  between  Ingersoll, 
Garvey,  Tweed,  and  others  unknown,  their  con- 
federates." This  was  but  a  fraction  of  the  plunder 
of  the  Ring,  but  it  happened  to  be  the  most 
impudent  of  all  their  felonious  transactions,  and 
it  furnished  the  chief  basis  for  their  subsequent 
prosecution.  So  far  as  any  chance  of  bringing  the 
Ring  thieves  to  justice  was  concerned,  the  posses- 
sion of  the  Controller's  office  was  absolutely 
essential  to  the  leaders  of  the  forces  of  reform. 
Mr.  Samuel  J.  Tilden  and  Mr.  William  F.  Have- 


260          LIFE  OF  SIMON  STERNE       CHAP. 

meyer  thus  performed  an  invaluable  service  to  the 
cause  of  public  justice,  no  less  than  to  an  honest 
and  capable  administration  of  the  city  finances,  by 
inducing  Connolly  to  appoint  Mr.  Andrew  H. 
Green  as  his  deputy.  No  man  who  has  occupied, 
before  or  since,  the  position  as  head  of  the  Finance 
Department  of  the  city  of  New  York  has  had  so 
difficult  a  task  as  that  which  presented  itself  to 
Mr.  Green.  Under  the  rule  of  the  Ring,  the 
debt-contracting  power  had  been  exercised  indis- 
criminately by  all  branches  of  the  city  and  county 
government.  Little  or  no  regard  was  paid  to 
positive  prohibitory  provisions  against  expendi- 
tures in  excess  of  authorised  appropriations,  and  the 
natural  result  was  an  annual  spawning  of  a  mass 
of  illegal  claims.  Nearly  every  department  had 
its  own  treasury,  paid  such  bills  as  it  chose,  and 
acted  without  restraint,  responsibility,  or  accounta- 
bility. Annual  expenses  thus  increased  enor- 
mously, floated  debt  accumulated,  and  all  kinds 
of  obligations  were  created  which  came  before 
those  who  had  to  administer  on  the  estate  of  the 
Ring  in  the  form  of  unadjusted  claims. 

Almost  from  the  time  of  his  entrance  into  the 
Controller's  office,  Mr.  Green  had  recourse  to  the 
advice  of  Mr.  Sterne  in  producing  order  out  of 
the  chaotic  mass  of  obligations  which  had  been 
bequeathed  to  him  by  the  Ring  officials.  In 
another  department  of  the  work  of  reconstruction, 
Mr.  Sterne  was  kept  equally  active.  During  the 
closing  months  of  1871  he  had  to  devote  all  the 
time  and  energy  at  his  disposal  to  the  preparation 
of  a  new  scheme  of  government  for  the  city.  This 


vni  THE  TWEED  RING  261 

was  nominally  the  work  of  the  Seventy's  Committee 
on  Legislation  of  which  he  was  a  member,  but 
abundant  evidence  is  furnished  by  notes  and  cor- 
rections in  his  own  hand  that  the  Charter  of  the 
Committee  of  Seventy  was  very  largely  his  own 
work.  In  the  absence  of  these,  the  fact  that  its 
whole  structure  rests  on  the  principle  of  minority 
representation  would  be  conclusive  as  to  its  author- 
ship, since  none  of  Mr.  Sterne's  associates  on  the 
Committee  was  so  profoundly  impressed  as  he 
with  the  vital  relation  of  that  principle  to  local 
self-government,  or  was  in  any  degree  so  con- 
versant with  the  methods  of  its  practical  application 
to  public  affairs.  In  judging,  therefore,  of  the 
value  of  the  changes  which  the  charter  of  the 
Committee  proposed  to  introduce  into  the  adminis- 
trative system  of  New  York,  it  must  always  be 
borne  in  mind  that  they  were  absolutely  con- 
ditioned on  the  efficacy  of  the  system  of  cumulative 
voting  to  elevate  the  whole  tone  and  character  ot 
the  city  legislature,  and  to  place  in  the  hands  of  a 
minority  of  that  body  the  same  power  to  make 
their  influence  felt  in  the  choice  of  members  of  the 
executive  commissions  which  a  minority  of  the 
voters  had  exercised  in  their  own  election.  At 
the  very  foundation  of  the  proposed  charter  was 
an  effort  to  make  the  aldermen  real,  instead  of 
sham,  legislators  for  the  city,  and  the  more  effect- 
ually to  accomplish  this,  provision  was  made  to 
give  any  compactly  organised  body  of  voters,  in  a 
given  district,  the  opportunity  to  elect  an  alderman 
who  should  be  independent  of  the  dictation  of  the 
managers  of  either  political  party. 


262          LIFE  OF  SIMON  STERNE      CHAP. 

The  precise  language  of  the  Charter  on  this 
subject  was  as  follows  : — 

At  such  election  each  qualified  voter  in  each  Senate 
district  may  give  as  many  votes  for  one  candidate  as 
there  are  aldermen  to  be  elected  in  said  districts.  The 
voter  may  give  the  whole  of  his  votes  for  one  and  the 
same  candidate,  or  may  distribute  them  among  nine 
different  candidates,  or  a  less  number,  in  such  proportion 
as  he  may  see  fit. 

It  was  proposed  to  confer  on  the  men  thus 
elected  a  very  important  share  of  the  power  of 
appointment  of  the  chief  local  officers.  For 
example,  the  Department  of  Public  Works,  which 
was  also  to  have  supervision  over  the  Docks,  was 
to  be  placed  under  the  charge  of  a  Board  of  five 
commissioners,  one  of  whom  was  to  be  appointed 
by  the  Mayor,  and  the  remaining  four  were  to  be 
elected  by  the  Board  of  Aldermen.  The  minority 
system  was  thus  applied  to  the  choice  of  these 
officers — 

At  such  election  each  alderman  shall  give  not  more 
than  four  open  ballots,  upon  each  of  which  shall  be 
printed  or  written  the  name  of  one  candidate  for  the 
office  of  commissioner,  and  each  of  which  shall  be  signed 
by  the  member  voting,  and  recorded  by  the  Clerk  of  the 
Board.  Each  alderman  may  give  the  whole  of  his 
ballots  for  one  and  the  same  candidate,  or  may  distribute 
them  between  four  different  candidates  or  a  less  number, 
in  such  a  proportion  as  he  may  see  fit.  The  four  persons 
having  the  largest  number  of  votes  shall  be  deemed 
elected. 

It  was  also  proposed  to  entrust  to  the  aldermen 


VIII 


RING  263 


the  control  over  city  expenditures  in  the  following 
terms : — 

The  Board  shall  have  the  exclusive  power  to  appro- 
priate money  by  proper  ordinance  for  every  branch  and 
object  of  city  expenditure  ;  and  no  money  shall  be  drawn 
from  the  city  treasury,  unless  the  same  shall  have  been 
previously  appropriated  by  the  Board.  They  shall  succeed 
to  and  be  vested  with  all  the  powers  now  vested  in  any 
department  of  the  city  government,  other  than  the 
Department  of  Public  Instruction,  to  incur  debt,  and 
raise  and  expend  public  money. 

The  process  of  reasoning  which  led  Mr.  Sterne 
to  the  conclusion  that  a  reform  of  the  city  govern- 
ment of  New  York  might  be  found  by  investing 
the  Board  of  Aldermen  with  the  real  power  of 
local  legislation  appears  to  have  been  somewhat  as 
follows  : — The  assumption  by  the  State  Legislature 
of  the  direct  control  of  local  affairs  has  necessarily 
involved  a  disregard  of  one  of  the  fundamental 
principles  of  Republican  government.  The  system 
of  government  by  municipalities  is  inherent  in  our 
free  institutions.  In  separate  communities  existing 
as  integral  parts  of  the  commonwealth,  but  having 
local  interests  which  immediately  concern  them- 
selves rather  than  the  State  at  large,  the  instinct 
of  self-government  has  always  asserted  itself  in 
some  way  as  the  basis  of  their  organic  life.  From 
this  germ  has  come  the  right  which  has  been 
claimed  and  exercised  of  the  administration  of  law 
and  government  by  municipalities  in  respect  of 
their  local  affairs,  while  retaining  their  allegiance 
as  members  of  the  whole  nation.  The  lines  which 
separate  the  functions  of  the  central  legislature  from 


264          LIFE  OF  SIMON  STERNE      CHAP. 

those  which  should  be  discharged  by  local  Govern- 
ment boards  is  sufficiently  distinct.  Whatever 
concerns  the  right  of  all  the  citizens  of  the  State, 
in  respect  either  of  persons  or  of  property,  belongs 
to  the  central  authority,  which  is  also  charged  with 
the  duty  of  devising  uniform  plans  by  which  the 
affairs  of  the  various  local  divisions  of  the  State 
may  be  administered  by  the  people  of  those 
divisions.  The  representatives  elected  to  the 
central  Legislature  are  chosen  expressly  for  the 
purpose  of  attending  to  these  general  duties. 
Among  the  reasons  why  they  ought  not  to  be 
charged  with  the  direction  of  the  local  affairs 
of  municipalities  are  these  :  They  have  neither 
the  requisite  time  nor  the  knowledge  of  detail. 
Whether  it  is  best  in  any  particular  city  to  open 
a  particular  street  or  avenue,  or  construct  an 
aqueduct,  or  any  other  public  work  requiring 
the  expenditure  of  money,  cannot  be  determined 
without  an  accurate  knowledge  of  the  affairs  of 
the  locality  which  are  usually  possessed  only  by 
those  residing  in  it.  Consequently,  when  a  local 
Bill  is  under  consideration  in  the  Legislature, 
its  care  and  explanation  are  left  exclusively  to 
the  representatives  of  the  locality  to  which  it  is 
applicable,  and  sometimes  by  express,  more  often 
by  a  tacit  understanding,  local  Bills  are  "  log-rolled  " 
through  the  Houses.  Thus  legislative  duty  is 
delegated  to  the  local  representatives,  who,  acting 
frequently  in  combination  with  some  of  the  worst 
elements  of  their  constituency,  are  able  to  shift 
the  responsibility  for  wrong-doing  from  themselves 
to  the  Legislature.  But  what  is  even  more  im- 


vni  THE  TWEED  RING  265 

portant,  there  is  lacking  in  the  State  Legislature 
that  sense  of  personal  interest  and  personal  responsi- 
bility to  their  constituents,  in  dealing  with  the 
affairs  of  localities,  which  are  indispensable  to  the 
intelligent  administration  of  these  affairs.  And 
yet,  the  judgment  of  the  local  governing  bodies 
and  the  wishes  of  their  constituents,  are  liable  to 
be  overruled  by  the  votes  of  legislators  living  at  a 
distance  of  a  hundred  miles. 

These  considerations  led  to  the  conclusion  that 
the  original  election  or  appointment  of  all  local 
governing  bodies,  the  duty  of  watching  or  check- 
ing them,  and  the  duty  of  providing,  or  the 
discretion  of  withholding,  the  supplies  necessary 
for  their  operations,  should  rest,  not  with  the 
central  Legislature,  but  with  the  people  of  the 
locality.  The  exercise  by  the  State  Legislature  of 
inappropriate  functions  has  had  this  among  other 
mischievous  consequences — the  time  which  should 
be  devoted  to  the  thorough  consideration  of 
measures  affecting  the  general  laws  and  policy  of 
the  State  is  invaded  and  wasted,  to  the  manifest 
injury  of  those  general  interests  which  it  is  the 
exclusive  province  of  the  Legislature  to  defend. 
The  multiplicity  of  laws  relating  to  the  same 
subjects  is  itself  an  evil  of  great  magnitude,  and 
what  the  law  is  concerning  some  of  the  most 
important  interests  of  our  principal  cities  can  be 
ascertained  only  by  the  exercise  of  the  most  patient 
research  of  professional  lawyers.  To  the  citizen 
it  is  a  sealed  book,  and  the  officers  who  are  called 
upon  to  administer  it,  are  bewildered  in  the  mazes 
of  conflicting  enactments.  It  may  be  true  that 


266          LIFE  OF  SIMON  STERNE      CHAP. 

the  first  attempts  to  secure  legislative  intervention 
in  the  local  affairs  of  our  principal  cities  were 
made  by  good  citizens  in  the  supposed  interest  of 
reform  and  good  government,  and  for  the  purpose 
of  counteracting  the  schemes  of  corrupt  officials. 
But  the  notion  that  legislative  control  was  the 
proper  remedy  was,  nevertheless,  a  serious  mistake. 
The  corrupt  cliques  and  rings  which  it  was  thus 
sought  to  circumvent,  were  quick  to  perceive  that 
in  the  business  of  procuring  special  laws  in  regard 
to  local  affairs,  they  could  easily  outmatch  the 
fitful  and  clumsy  efforts  of  disinterested  citizens. 
The  transfer  of  the  control  of  municipal  resources 
from  the  localities  to  the  State  capital  had  no 
other  effect  than  to  cause  a  like  transfer  of  the 
methods  and  arts  of  corruption,  and  to  make  the 
fortunes  of  our  principal  cities  the  traffic  of  the 
lobbyist. 

Mr.  Sterne  found  it  idle  to  look  forward  to 
any  remedy  for  the  existing  abuses  of  municipal 
government  based  on  the  limitation  of  the  suffrage 
to  property  owners  or  rent-payers.  As  the  French 
say  of  an  individual  that  he  has  the  defects  of  his 
virtues,  so  it  may  be  said  of  our  institutions  that, 
taking  into  consideration  the  enormous  benefits 
which  arise  from  the  exercise  of  the  right  of 
universal  suffrage,  we  must  be  content  to  pay  the 
price  of  the  defects  of  such  a  system  in  its  applica- 
tion to  the  concentrated  expenditures  and  tempta- 
tions incidental  to  municipal  administration.  In 
seeking  remedies  in  other  directions  than  in  the 
restriction  of  the  suffrage,  Mr.  Sterne  recognised 
the  low  estate  into  which  the  Board  of  Aldermen 


vin  THE  TWEED  RING  267 

had  fallen.  But  he  insisted  that  this  was  due  to 
its  election  by  a  district  system  and  by  the 
majority  plan,  and  that  stripped  of  all  truly 
governmental  functions,  such  a  Board  could 
exercise  no  weight  and  perform  no  useful  service. 
He  regarded  it,  therefore,  of  the  first  importance, 
after  securing  a  constitutional  amendment  which 
should  compel  the  Legislature  to  keep  its  hands 
off  all  expenditures  of  strictly  local  concern,  to 
obtain  once  more  a  municipal  legislative  body 
fitted  to  command  the  confidence  and  secure  the 
services  of  the  best  men  of  the  community.  This 
he  held  could  be  done  only  by  electing  such  a 
body  on  a  plan  of  minority  representation. 

He  argued  that  by  adopting  some  method  of 
minority  or  totality  representation  we  should 
prevent  the  swamping  of  the  more  intelligent 
classes  and  of  the  property  interests  of  the  com- 
munity. Totality  representation  is  not  in  conflict 
with  the  rule  of  the  majority  ;  but,  on  the  con- 
trary, it  would  ensure  the  rule  of  the  true,  instead 
of  a  fictitious  majority.  When  the  whole  people 
are  represented  in  the  representative  body,  instead 
of  only  a  part  of  them,  the  taking  of  a  vote  in 
that  body  would  be  somewhat  analogous  to  taking 
the  vote  of  the  entire  people  represented,  and 
then  we  should  have  at  least  an  approach  to  an 
adequate  representation  of  all  our  citizens,  rich 
and  poor  alike.  Were  we  to  enact  that  the  com- 
mon council  thus  representing  the  whole  of  the 
people  with  its  fair  proportions  of  taxpayers, 
should  have  no  power  to  incur  expenses  or  create 
a  permanent  debt,  unless  sanctioned  by  the  vote 


268          LIFE  OF  SIMON  STERNE      CHAP. 

of  three-fourths  of  the  members  elected,  it  would 
practically  result  in  the  giving  of  a  veto  to 
property  interests  against  such  expenditure  for 
the  reason  that  a  combination  of  the  taxpayers, 
under  any  proper  scheme  of  minority  repre- 
sentation, could  secure  at  least  a  fourth  of  the 
members  of  the  Board.  Among  the  other 
benefits  to  be  derived  from  minority  representa- 
tion, not  the  least  in  Mr.  Sterne's  estimation, 
would  be  the  emancipation  of  independent  voters 
from  abject  dependence  on  party  candidates  and 
the  securing  of  permanence  in  office  for  men  of 
proved  capacity  and  honesty.  In  defending  the 
reform  against  the  accusation  of  complexity,  Mr. 
Sterne  was  accustomed  to  say  that  were  the 
political  parties  compelled  to  write  out  in  a  book 
the  rules  and  regulations,  their  manner  of  holding 
primary  elections  and  pre-  primary  ones,  their 
system  of  making  up  slates  and  packing  conven- 
tions, the  machinery  would  appear  too  complex 
for  practical  action.  The  system  of  minority  re- 
presentation appears  complex  simply  because  it 
must  be  provided  for  by  law  and  be  written  out 
in  detail.  Under  the  system  provided  for  in 
the  charter  of  the  Committee  of  Seventy,  by 
which  each  voter  in  the  Senate  district  to  which 
he  belonged  had  nine  votes  which  he  could 
cumulate  on  one  candidate  or  distribute  as  he 
saw  fit,  the  power  was  given  to  a  minority  of 
one-tenth,  plus  one,  of  the  voters  of  the  district 
to  elect  one  member  of  the  Board  of  Aldermen. 
An  objection  to  this  plan  on  the  score  of  the 
waste  of  votes  which  might  result  from  it  did  not 


vin  THE  TWEED  RING  269 

lie,  Mr.  Sterne  argued,  in  the  mouths  of  those 
who  believed  in  the  present  system  of  representa- 
tion by  majorities  only,  because  that  results  in 
the  waste  of  a  very  much  larger  proportion  of 
votes,  namely,  all  the  votes  cast  for  unsuccessful 
candidates. 

Substantially  in  the  form  in  which  it  was 
drafted,  the  Legislature  of  1872  adopted  the 
charter  of  the  Committee  of  Seventy.  It  was 
promptly  vetoed  by  Governor  Hoffman,  mainly 
because  he  regarded  its  fundamental  principle — 
that  of  minority  representation — was  of  doubtful 
constitutionality.  It  is  instructive  to  note  the 
contrasted  views  on  this  question  of  a  man  like 
Mr.  Sterne,  devoted  to  the  principles  and  practice 
of  a  broad  and  enlightened  statesmanship,  with 
those  of  a  timid  and  truckling  politician  like 
John  T.  Hoffman.  The  Governor's  method  of 
stating  his  objections  to  the  representation  of 
minorities  was  as  follows  : — 

A  very  serious  question  arises  whether  this  method  of 
voting  is  in  conformity  with  the  provisions  of  the  Con- 
stitution. Many  of  the  ablest  lawyers  of  the  State  have 
not  hesitated  to  express  their  convictions  that  it  must 
be  held  to  be  unconstitutional.  It  is  said,  and  with  great 
force,  that  the  election  as  regulated  by  this  charter  is 
not  an  election  in  the  sense  in  which  that  word  was 
understood  at  the  time  the  Constitution  was  made,  and 
in  the  sense  that  it  has  always  been  understood  among 
us.  An  election  is  the  choice  of  a  public  officer  by 
his  receiving  a  larger  number  of  votes  than  any  other 
candidate  in  the  district  entitled  to  fill  the  office,  all  the 
electors  being  entitled  to  vote  once  at  such  election  for  a 
candidate  for  the  place  to  be  filled.  It  is  suggested  also 


270          LIFE  OF  SIMON  STERNE      CHAP. 

that  the  Constitution  guarantees  that  all  electors  shall  be 
entitled  to  vote  for  all  officers  who  are  to  be  elected  by 
the  people,  and  that  if  any  elector  exercises  his  right  to 
vote  once  for  each  of  the  nine  aldermen  to  be  chosen  for 
his  district,  his  single  vote  as  to  any  one  of  the  candidates 
cannot  be  overriden  by  one  of  his  neighbours  voting  nine 
times  for  some  one  man  for  the  same  place,  without  an 
infraction  of  his  equal  right  of  suffrage  as  an  elector 
under  the  Constitution.  There  is,  therefore,  reason  to 
fear  that  the  election  ordered  under  this  charter  might 
be  declared  invalid  at  a  time  when  the  Legislature  is  not 
in  session,  and  that,  meanwhile,  great  confusion  may 
prevail  in  the  affairs  of  the  city.  While  in  ordinary 
cases  a  threat  of  litigation  is  not,  of  itself,  a  sufficient 
reason  why  the  Legislature  should  refrain  from  passing  a 
law,  or  why  I  should  refuse  it  my  approval,  yet,  when 
the  change  to  be  made  in  the  law  is  so  revolutionary  in 
character  as  it  is  in  this  case,  when  the  doubts  of  its 
constitutionality  are  so  grave  and  serious,  and  when 
complicated  and  injurious  litigation  is  almost  certain  to 
follow,  both  the  Legislature  and  myself  are  bound,  by  a 
prudent  regard  for  the  public  interests,  to  abstain  from 
making  great  innovations,  not  called  for  by  any  over- 
ruling necessity.  The  fundamental  principle  of  our 
government,  familiar  to  the  people,  is  that  elective 
officers  shall  be  chosen  by  a  majority  of  the  votes  of  the 
people  entitled  to  take  part  in  the  choice.  In  all 
questions  submitted  to  the  people  the  majority  decides. 
When  any  other  principle  is  sought  to  be  introduced,  a 
revolutionary  change  of  great  magnitude  is  proposed, 
which  ought  not  to  be  tried  under  the  sanction  of  an 
act  of  the  Legislature  only  ;  if  so  great  a  change  is  to  be 
made  at  all,  it  should  be  done  only  with  the  careful 
deliberation  which  pertains  to  revisions  of  the  Con- 
stitution. 

The  independence  of  party  organisation  which 
the  system  of  cumulative  voting   conferred,   and 


vin  THE  TWEED  RING  271 

which  was  regarded  as  one  of  its  chief  merits  by 
Mr.  Sterne,  did  not,  naturally,  commend  itself  to 
Governor  Hoffman.  He  was  too  thoroughgoing 
a  partisan  to  admit  that  the  system  of  party 
responsibility  for  the  government  of  New  York 
had  proved  a  costly  failure,  and  he  was  at  no 
loss  to  find  specious  arguments  for  the  continu- 
ance of  the  system.  As  a  fair  sample  of  the 
kind  of  objections  which  the  politicians  have 
always  interposed  to  the  adoption  of  minority 
representation,  the  following  additional  extracts 
from  his  veto  message  may  be  worth  quoting  : — 

In  all  free  governments  the  people  divide  themselves 
into  two  great  parties.  This  tendency  is  so  universal 
that  it  is  not  statesmanship  to  ignore  it.  Enactments 
will  not  overcome  it.  It  is  a  natural,  useful,  and  whole- 
some division  ;  it  ensures  a  large  body  of  men  among 
the  people  interested  in  and  intent  upon  fault-finding 
with  the  party  in  power,  and  struggling,  by  means  of 
exposure  of  their  errors,  to  bring  over  to  the  side  of  the 
minority  enough  of  the  electors  to  convert  it  into  a 
majority,  and  so  to  take  over  the  government.  In 
politics,  as  in  other  things,  it  is  agitation  which  purifies. 
Under  this  proposed  new  system  of  voting,  the  minority 
carry  in  their  candidates  without  effort.  The  majority 
do  the  same.  In  a  district  where  it  is  known  that  the 
political  majority  usually  casts  about  two-thirds  of  the 
whole  vote,  there  being  nine  aldermen  to  be  elected, 
the  caucus  or  nominating  convention  of  the  political 
majority  will  naturally  concentrate  all  their  votes  upon 
six  candidates  ;  the  caucus  of  the  minority  will  con- 
centrate on  three.  There  will  be  no  actual  contest 
before  the  people.  The  decrees  of  the  party  caucuses 
will  be  absolute.  Neither  side  will  be  in  fear,  lest,  by 
putting  forward  unfit  candidates,  it  may  lose  the  election. 


272          LIFE  OF  SIMON  STERNE      CHAP. 

For  the  two  parties  will  be  acting  at  the  polls  not  against 
each  other,  but  independent  each  of  the  other.  This 
condition  of  things,  where  the  decrees  of  the  party 
caucuses  on  both  sides  are  final,  naturally  gives  rise  to 
secret  combinations  between  the  leaders  on  both  sides 
for  an  agreed  upon  division  of  power,  against  which 
combinations  the  mass  of  the  voters  might,  under  this 
system,  struggle  in  vain.  It  is  true  there  is  an  oppor- 
tunity for  a  combination,  in  favour  of  one  or  two 
candidates,  of  independent  voters,  who  may  be  regardless 
of  party  associations.  But  when  the  power  of  the 
regular  party  organisation  is  considered,  will  not  this 
influence  of  combinations  of  independent  voters  make 
itself  felt  to  a  very  limited  extent,  and  very  rarely  ? 
Will  it  be  equal  to  the  power  which  voters,  disposed  to 
disregard  their  party  associations  on  any  occasion,  can 
now  exert,  by  temporarily  voting  with  the  opposing 
party,  by  way  of  rebuke  to  their  own  ? 

Mr.  Sterne  was  disappointed  at  this  issue  of 
the  legislative  effort  of  the  Seventy  on  which  he 
had  built  some  very  sanguine  expectations  of 
future  reform,  but  he  was  not  by  any  means 
discouraged.  A  Mayor  was  to  be  elected  in  the 
fall  of  1872,  and  to  the  choice  of  a  man  who 
could  be  trusted  to  carry  out  his  views  of  non- 
partisan  reform,  all  the  efforts  of  the  working 
membership  of  the  Committee  were  directed. 
On  the  platform  drafted  by  the  Committee,  Mr. 
William  F.  Havemeyer  was  elected — a  Democrat 
of  the  old  school  who  had  been  already  twice 
Mayor  of  New  York  in  1845-46  and  1848-49. 
Mr.  Sterne  was  one  of  those  to  whom  the  mayor- 
elect  turned  for  counsel  and  guidance,  and  there 
is  ample  evidence  that  Mr.  Sterne  was  consulted 
in  the  preparation  of  the  Mayor's  inaugural 


vni  THE  TWEED  RING  273 

message.  In  reviewing  the  laws  relating  to  the 
government  of  the  city,  the  message  points  out 
that,  under  the  existing  charter,  the  legislative 
power  of  the  corporation  is  vested  in  the  common 
council.  But  this  was  not  the  system  which  had 
governed  the  city  since  the  law  was  enacted  ;  there 
had  been  form  not  substance — a  legislature  in 
name,  but  not  in  reality.  Everything  had  been 
done  as  though  there  had  been  no  legislative 
body  ;  as  if  no  common  council  existed  as  part 
of  the  city  government.  While  in  theory  the 
executive  departments  were  subordinate  to  the 
Mayor,  they  had  been  by  law  made  practically 
independent  of  him,  and  had  absorbed  to  them- 
selves all  the  legislative  power,  thus  leaving  the 
common  council  the  direct  representatives  of  the 
people,  without  influence  and  almost  without 
functions.  This,  the  Mayor  held,  should  no 
longer  continue.  The  legislative  power  should 
be  restored  to  the  common  council.  Elected  by 
the  people  in  a  sense  which  could  not  be  predi- 
cated of  any  election  in  the  city  during  the  past 
twenty  years,  the  aldermen  were  reminded  that 
they  should  act  for  the  people,  and  for  no 
particular  party,  political  or  otherwise.  Their 
first  duty  should  be  to  see  that  the  legislative 
power  of  the  government  was  in  reality,  and  not 
merely  in  name,  vested  in  themselves.  Wherever 
they  found  this  power  to  have  been  assumed  by 
the  departments  without  authority,  the  Mayor 
advised  them  that  a  change  should  be  effected. 
He  was  persuaded  that  an  examination  would 
satisfy  them  that,  even  under  existing  laws,  their 

T 


274          LIFE  OF  SIMON  STERNE      CHAP. 

powers  were  by  no  means  so  limited  as  the  action 
of  their  predecessors  would  indicate. 

Equally  suggestive  of   the    influence    of    Mr. 
Sterne   was   the   passage    in    Mayor    Havemeyer's 
inaugural  counselling  caution  in  the  choice  of  the 
remedies  by  which  the  various  defects  in  the  city 
government  might  be  cured.    It  was  declared  that 
the  municipality  of  New  York  is  intended  to  be 
and   ought  to   be   a  government  by  and  for  the 
people  of  the  city.     The  people  of  the  city  had 
shown  their  ability  and  determination  to  govern 
themselves,    and    they    relied    upon    their    elected 
representatives  to  maintain  and  defend  their  muni- 
cipal right.     From  general   and  State  politics,  the 
government  of  the  city  should,  as  far  as  possible, 
be  removed.      Efficiency,   honesty,  and  economy 
were  the  characteristics  by  which  it  should  be  dis- 
tinguished.     The  legislation   necessary  to  secure 
improvement    in    the    government    of    the    city 
should  be  promoted  and  approved  by  the  corporate 
authorities,  and  by  them  officially  presented  to  the 
Legislature.     Legislation  sought  for  by  any  single 
department  for  its  own  purposes,  to  extend  its  own 
power,  must  be  prevented.     The  spectacle  which 
had  been  witnessed  during  the  preceding  winter  of 
the  heads  of   some   of   the    departments,  with  a 
lobby  of  retainers,  besieging  the  Legislature  during 
the  whole  session  to  keep  themselves  in  office,  and 
to  retain  their  emoluments  and  patronage,  should 
no  longer  be  tolerated.     All  legislation  for  cor- 
porations,    or     individuals,     designed    to    benefit 
particular  interests  at  the  public  expense,  should 
be  determinedly  opposed.     Special  legislation  had 


vin  THE  TWEED  RING  275 

been  made  an  instrument  of  gigantic  plunder  of 
the  city,  and  this  channel  for  the  advancement 
of  private  and  individual  interests,  at  the  expense 
of  the  public,  must  be  closed.  If  the  Board  of 
Apportionment  was  to  continue  in  existence,  its 
constitution  should  be  changed  so  as  to  put  an 
end  to  the  anomaly  of  executive  officers  sitting 
thereon,  and  voting  the  amounts  they  are  to  have 
at  their  disposal  to  expend.  No  more  executive 
officers  should  have  such  power  ;  it  should  be 
placed  exclusively  in  the  hands  of  those  city  officers 
whose  duty  it  is  to  watch  and  restrain. 

Thus  the  reconstruction  of  the  city  govern- 
ment on  a  non-partisan  basis  began,  but  it  had  not 
proceeded  far  before  complaints  began  to  be  heard 
that  an  attempt  was  being  made  to  cheat  the  Re- 
publicans out  of  the  fruits  of  a  victory  which  was 
legitimately  theirs.  The  spokesmen  of  the  party, 
whose  organisation  had  indorsed  Mr.  Havemeyer, 
said  that  if  a  party  victory  was  to  be  claimed,  they 
must  claim  it  on  behalf  of  the  Republicans.  By 
way  of  heading  off  any  further  attempt  to  get  a 
non-partisan  charter  through  the  Legislature,  the 
Republican  Central  Committee,  early  in  November, 
appointed  a  sub-committee  to  prepare  such  drafts 
of  laws  relating  to  the  city  as  might  seem  to  be 
desirable.  This  committee  began  its  work  by  the 
preparation  of  a  number  of  amendments  to  the 
City  Charter,  which  were  practically  equivalent  to 
the  entire  recasting  of  that  instrument.  While 
they  were  left  without  any  authoritative  repre- 
sentation of  the  views  of  the  Committee  of  Seventy, 
they  claimed  to  have  adopted  in  great  measure 


276          LIFE  OF  SIMON  STERNE      CHAP. 

the  specific  propositions  which  had  been  favoured 
by  the  Committee  on  Legislation  of  the  Seventy. 
Indeed,  the  Republican  sub  -  committee  claimed 
that  the  only  points  of  importance  on  which  they 
differed  on  the  sub-committee  of  the  Committee 
of  Seventy  were  that  they  did  not  introduce 
minority  representation ;  that  they  gave  the  ap- 
pointment of  the  heads  of  departments  to  the 
Mayor  and  aldermen,  instead  of  to  the  Mayor 
alone  ;  that  they  did  not  provide  for  a  spring 
election  ;  that  they  confined  the  preparation  of 
the  tax  levy  to  municipal  officers  instead  of  con- 
ferring any  authority  over  it  upon  State  officers  ; 
and  that  they  did  not  remove  from  office  the  four 
heads  of  departments  who  had  been  appointed 
after  the  fall  of  the  Ring.  The  Committee  frankly 
admitted  that,  acting  as  Republicans,  they  had 
not  been  indifferent  to  the  wishes  or  interests  of 
that  party.  They  asked  those  who  might  be  dis- 
posed to  disapprove  of  their  work  to  remember 
that  any  amendments  to  the  Charter  of  the  city 
were  to  come  from  a  Legislature  in  which  their 
party  was  in  a  large  majority. 

The  Republican  Charter  was  duly  reported 
favourably  by  the  Committee  on  the  affairs  of 
cities  of  the  Assembly,  and  it  evoked  a  letter  of 
protest  from  Mayor  Havemeyer,  in  the  prepara- 
tion of  which  the  hand  of  Mr.  Sterne  is  clearly 
traceable.  The  Mayor  objected  most  strenuously 
to  the  provisions,  that  if  the  aldermen  should 
object  to  any  person  nominated  by  the  Mayor,  he 
should  promptly  nominate  another  person  in  the 
place  of  the  one  so  objected  to,  and  continue  so 


vin  THE  TWEED  RING  277 

to  nominate,  until  in  case  of  a  vacancy,  twenty 
days  should  have  elapsed  since  its  occurrence,  or 
until,  in  the  case  of  the  expiration  of  a  term  of 
office,  not  more  than  ten  days  of  the  term  remained 
unexpired.  If  at  such  periods  respectively,  no 
nominations  should  have  been  made  which  shall  have 
met  the  approval  of  the  aldermen,  it  became  the 
duty  of  the  Mayor  and  aldermen  to  meet  in  joint 
convention  within  four  days  thereafter,  and  by 
the  vote  of  the  majority  of  those  present  to  make 
such  appointment.  The  Mayor  insisted  that  this 
was  a  distinct  and  positive  transfer  of  executive 
power  to  the  Board  of  Aldermen,  thinly  covered 
by  allowing  the  Mayor  to  go  through  the  farce 
of  making  nominations  for  twenty  days,  which 
are  to  be  rejected,  and  then,  as  a  premium  on  such 
rejection,  to  make  the  Board  of  Aldermen  supreme 
in  the  appointing  power,  by  compelling  the  Mayor 
to  act  with  them  as  one  of  their  number  only. 
He  pointed  out  that  to  secure  this  end  it  would 
not  be  necessary  for  the  Board  of  Aldermen  even 
to  act  upon  any  nomination  by  rejection  ;  if  a 
sufficient  number  of  the  Board  should  remain 
away  from  the  meetings  to  prevent  a  quorum 
during  twenty  days,  the  same  end  would  be  accom- 
plished as  though  the  Mayor  had  not  the  power 
to  nominate  conferred  upon  him.  It  was  needless 
to  urge  that  the  Board  of  Aldermen  would  not 
seize  and  use  such  a  power  when  the  only  price 
for  its  possession  was  absence  from  the  meetings  of 
the  Board,  whose  members  were  thus  to  be  relieved 
from  even  a  slight  responsibility  of  rejecting  good 
nominations  for  public  offices. 


278          LIFE  OF  SIMON  STERNE      CHAP. 

In  addressing  the  Committee  of  Seventy  on 
this  subject,  the  Mayor  endeavoured  to  impress 
upon  them  that  this  act  had  for  its  main  object  to 
give  the  city  an  entirely  irresponsible  form  of 
government,  and  to  prevent  the  people  from 
changing  it  by  an  uprising  similar  to  that  of  1871, 
when  such  a  Government  should  have  produced 
its  inevitable  fruits  of  corruption,  neglect  of  duty, 
and  misappropriation  of  public  funds.  He  recalled 
the  fact  that,  in  his  inaugural  message,  he  had 
urged  the  necessity  of  a  reform  giving  back  to  the 
common  council  the  legislative  power  which  pro- 
perly appertains  to  it,  and  stripping  the  depart- 
ments of  that  independence  which  makes  them 
separate  and  distinct  governments.  In  place  of 
this  reform,  however,  it  was  not  proposed  to  have 
one  jot  or  tittle  added  to  the  proper  function  of 
the  legislative  branch  of  the  Government.  What 
was  to  be  added  was  executive  power,  so  that 
to  the  inharmonious  government  with  which  the 
city  was  already  afflicted,  and  which  presented  the 
absurdity  of  frittering  away  the  legislative  power 
among  the  executive  departments,  there  was  to  be 
superadded  the  monstrosity  of  a  legislative  body 
exercising  the  principal  functions  of  the  chief 
executive.  The  Mayor  reiterated  his  opinion  that 
the  power  of  raising  taxes  and  determining  their 
amount  should  be  left  to  the  people  of  the  city  of 
New  York,  who  were  to  be  affected  by  its  exercise. 
Answering  the  question  of  where  this  power  should 
be  lodged,  he  replied — 

Clearly  in  the  Board  of  Aldermen,  under  the  check 


viii  THE  TWEED  RING  279 

of  a  two-thirds  or  three-fourths  vote,  frequent  elections, 
direct  and  immediate  responsibility  to  the  people,  with 
the  additional  safeguard  of  an  executive  veto  by  the 
Mayor  of  any  of  the  provisions  of  the  tax  levy.  Dis- 
claiming all  intention  to  reflect  on  the  men  composing 
the  Board  of  Aldermen,  or  to  claim  new  patronage  for 
the  office  which  he  held,  he  insisted  that  when  a  new 
organic  law,  as  the  result  of  the  reform  movement  of 
the  past  two  years,  was  proposed,  the  true  question  is  : 
"  Is  it  an  honest  law  ?  Does  it  furnish  the  reform  for 
which  our  people  have  struggled  and  won  victories,  or  is 
it  an  attempt  of  dishonest,  contriving  politicians  to  cheat 
the  people  of  the  fruit  of  their  labours  ?  " 

In  making  his  appointments  for  public  office, 
Mayor  Havemeyer  had  drawn  largely  on  the 
membership  of  the  Committee  of  Seventy,  and  the 
reputation  of  that  body  for  disinterested  public 
spirit  became,  thereby,  somewhat  impaired.  Mr. 
Sterne  himself  would  accept  no  office,  although 
the  Mayor  had  frequently  solicited  him  to  do  so. 
The  question  was  submitted  to  a  sub-committee, 
of  which  Mr.  Sterne  was  a  member,  whether  the 
organisation,  having  done  the  work  for  which  it 
was  called  into  being,  should  be  disbanded.  The 
report  rendered,  in  reply  to  this  question,  is  among 
Mr.  Sterne's  papers,  in  his  own  handwriting,  and 
may  be  presumed  to  be  chiefly  his  work.  The 
only  signature  appended  to  it  is  his  own  as  secre- 
tary of  the  sub-committee.  The  report  begins 
with  the  admission  that  its  authors  were  alive  to 
the  formation  of  a  popular  prejudice  against  the 
Committee  of  Seventy  by  reason  of  the  acceptance 
of  offices  of  profit  under  the  city  government  by 
some  of  its  members.  While  it  was  but  natural 


28o          LIFE  OF  SIMON  STERNE      CHAP. 

that  the  Mayor  should  look  to  those  who  had 
fought  with  him  the  battle  of  reform  to  share, 
to  some  degree,  the  responsibilities  of  office,  and 
while  it  certainly  would  not  be  consistent  to  regard 
the  acceptance  of  public  trusts  by  worthy  men  as 
a  ground  of  reproach,  yet,  as  a  fact,  these  appoint- 
ments had  caused  the  Committee  no  little  embarrass- 
ment. It  was  clear  to  the  minds  of  the  authors  of 
this  report  that  the  usefulness  of  the  Committee 
of  Seventy  would  be  considerably  impaired  if  the 
gentlemen  who  held  public  positions  of  emolument 
continued  to  be  members  thereof,  and  in  recom- 
mending that  the  General  Committee  continue  in 
existence,  it  was  assumed  that  the  resignation  would 
be  accepted  of  such  of  its  members  as  were  draw- 
ing pay  as  office-holders  from  the  city  or  county 
treasury. 

Reviewing  the  work  done  by  the  Committee  of 
Seventy,  the  report  goes  on  to  say  that  while  it 
might  be  true  that  the  people  of  New  York  in 
calling  the  Committee  into  being  did  not  mean 
to  create  a  permanent  political  organisation,  and 
that  possibly  it  might  be  deemed  a  very  liberal 
construction  of  the  popular  mandate  to  continue 
the  organisation  longer  than  was  dictated  by  the 
absolute  necessities  of  the  hour,  yet,  when  the 
very  great  service  which  the  Committee  had  per- 
formed for  the  community  was  taken  into  account, 
it  was  felt  that  a  capital  of  political  power  so  useful 
in  its  character  should  not  be  lightly  cast  to  the 
winds.  There  was  no  reason  why,  in  the  immediate 
future,  as  well  as  in  the  recent  past,  the  activity  of 
the  Committee  should  fail  to  be  productive  of  very 


vin  THE  TWEED  RING  281 

great  good  through  its  positive  influence  in  elections 
by  the  moral  effect  it  could  exercise  in  inducing  a 
high  average  of  nominations  for  public  office,  and 
by  salutary  efforts  to  promote  wholesome  and  check 
pernicious  legislation.  In  addition  to  the  benefits 
to  be  derived  by  the  citizens  of  New  York  from 
the  existence  of  a  body  of  gentlemen  whose  business 
it  is  to  watch  political  parties  in  relation  to  city 
affairs,  to  exercise  their  influence  in  the  election  of 
fit  men  to  office,  and  actively  to  exert  themselves 
to  secure  the  passage  of  necessary  laws  and  defeat 
dangerous  ones,  there  is  the  further  advantage  that 
whether  at  the  moment,  active  or  not,  the  Com- 
mittee would  furnish  a  rallying  point  for  the  better 
class  of  citizens  in  case  of  any  public  danger  arising 
from  future  misgovernment,  and  would  furnish  a 
nucleus  for  organised  resistance  to  any  such  com- 
bination as  that  from  which  the  city  had  recently 
been  delivered.  It  was  pointed  out  that  political 
power  has  the  constant  tendency  in  all  countries  to 
fall  into  the  hands  of  the  leisure  class,  but  that  in 
this  busy  country  of  ours  the  leisure  class  is  not 
composed  of  men  to  whom  the  possession  of  wealth 
for  generations  has  brought  certain  standards  of 
education  and  conduct  higher  than  the  average,  but 
is  mainly  made  up  of  persons  who  have  become 
unfitted  by  vice  or  ignorance  for  the  active  pursuits 
of  life.  Hence  the  moment  that  the  pressure  of 
immediate  necessity  is  removed,  busy  men  return 
once  more  to  vocations  which  have  a  very  remote 
connection  with  politics  and  political  power,  wrested 
for  a  time  from  the  grasp  of  those  who  possess  it, 
reverts  once  more  to  the  men  whose  only  business 


282  LIFE  OF  SIMON  STERNE      CHAP. 

is  politics.  The  only  means  of  counteracting  such 
a  tendency  is  to  keep  alive  by  means  of  some 
organisation  like  the  Committee  of  Seventy  the 
watchfulness  of  our  much  occupied  citizens,  and  to 
scrutinise  closely  acts  done  or  intended  to  be  done, 
affecting  the  city  government,  so  that  it  may  not 
fall  back  into  the  condition  from  which  it  had  but 
recently  emerged.  Many  evils  continue  to  exist 
which  required  a  remedy,  and  the  City  Charter 
which  had  passed  the  Republican  Legislature  was 
very  far  from  being  such  an  instrument  as  would 
best  subserve  the  ends  of  good  government.  It 
was,  therefore,  held  to  be  scarcely  proper  for  the 
Committee  to  surrender  the  mandate  received  at 
the  hands  of  the  people  while  there  was  so  much 
left  to  be  accomplished  in  the  way  of  reform.  The 
report  concluded  by  the  statement  that  while  these 
and  kindred  considerations  had  caused  its  authors 
to  recommend  that  the  Committee  of  Seventy 
should  remain  together  as  an  organised  force 
against  fraud  and  corruption  in  local  politics,  the 
recommendation  was  based  on  the  hope  that  the 
report  would  be  adopted  by  the  great  majority  of 
the  members.  Should  a  respectable  and  influential 
minority  differ  from  the  views  which  the  report 
had  expressed,  and  hold  that  it  were  better  to 
dissolve  the  Committee,  Mr.  Sterne  and  his  associ- 
ates said  that  in  such  a  contingency  they  would 
recommend  a  surrender  of  the  functions  of  the 
Committee  rather  than  continue  it  as  a  divided 
and  crippled  organisation,  shorn  of  all  that  could 
make  it  formidable,  and  hence  respectable,  as  a 
political  power. 


vni  THE  TWEED  RING  283 

This  was,  in  fact,  the  contingency  which  had  to 
be  faced,  and  the  Committee  of  Seventy  was  accord- 
ingly dissolved.  It  will  live  in  the  history  of  the 
city  as  part  of  a  regime  of  reform  to  which,  what- 
ever its  defects,  must  be  accorded  the  distinction 
of  having  brought  administrative  order  out  of 
chaos,  of  having  found  the  credit  of  the  city  abso- 
lutely wrecked,  and  having  left  it  fully  restored. 
The  eyes  of  the  people  had  been  opened  to  the 
monstrous  character  of  the  pretension  that  the  city 
of  New  York  could  be  treated  by  contending  sets 
of  partisans  like  a  conquered  province.  Though 
the  victory  of  the  advocates  of  non-partisanship  in 
the  city  government  had  been  far  from  complete, 
and  was  not  destined  to  be  lasting,  the  fight  had 
been  fairly  begun  which,  continued  intermittently 
to  the  present  time,  and  more  seriously  prosecuted 
now  than  it  has  been  in  all  the  thirty  years  since 
the  first  Committee  of  Seventy  was  organised,  bids 
fair  to  assure  the  permanence  of  business  methods 
in  the  city  government  of  New  York. 

In  1871,  the  leading  merchants  of  New  York 
closed  their  places  of  business  on  Election  Day,  that 
nothing  might  be  left  undone  to  bring  out  a  full 
vote  against  the  nominees  of  the  Tweed  Ring.  It 
was  Mr.  Sterne's  suggestion  that  this  precedent 
should  be  established  by  law,  and  the  designation 
of  Election  Day  as  a  legal  holiday  will  be  remem- 
bered among  his  services  to  the  cause  of  good 
government. 


CHAPTER   IX 

THE    SISYPHEAN    LABOUR    OF    MUNICIPAL    REFORM 

THE  immediate  issue  of  the  municipal  reform 
movement  to  which  the  Committee  of  Seventy  had 
given  shape  and  direction  was  sufficiently  discour- 
aging. With  the  election  of  mayor  in  the  fall  of 
1874,  the  city  administration  of  New  York  began 
to  settle  into  the  old  partisan  rut  again.  The 
cause  of  non-partisanship  in  city  government  found 
its  sole  advocacy  in  the  platform  of  a  body  of 
"  Independent  Democrats/'  whose  candidate  for 
mayor  was  Mr.  Oswald  Ottendorfer.  This  organ- 
isation declared  that  while  in  its  general  political 
action  effect  was  given  to  its  partisan  views  by 
supporting  candidates  of  like  sentiments,  its  mem- 
bers deemed  it  to  be  their  duty  to  support  local 
candidates,  without  distinction  of  party,  whose 
election  would  aid  in  relieving  the  city  from  the 
rule  of  political  bosses,  and  all  good  citizens,  irre- 
spective of  party,  were  invited  to  unite  with  them 
in  the  accomplishment  of  that  object.  Tammany 
placed  in  the  field  as  its  candidate  for  mayor,  Mr. 
William  H.  Wickham,  a  business  man  of  respect- 
able repute,  and  the  Republicans  nominated  a 

284 


CHAP,  ix      MUNICIPAL  REFORM  285 

straight  party  candidate  in  the  person  of  Mr.  Salem 
H.  Wales.  How  quickly  the  lesson  of  the  Tweed 
Ring  had  been  forgotten  by  New  York  voters  is 
demonstrated  by  the  fact  that  the  combined  vote 
of  Ottendorfer  and  Wales  was  less  than  that 
received  by  the  Tammany  candidate.  The  fact 
that  the  mayor -elect  was  a  man  of  reputable 
character  and  antecedents  did  not  change  the 
character  of  the  organisation,  whose  candidate  he 
was,  and  whose  interest  he  must  needs  serve.  The 
feeling  with  which  reformers  viewed  this  collapse 
of  the  movement  which  was  started  with  so  much 
promise  in  1871  may  be  inferred  from  the  comment 
made  by  the  New  York  Times  on  the  result  of  the 
municipal  election  of  November  1874  :  "If  any- 
body had  said  in  the  fall  of  1871,  when  the  public 
indignation  against  the  Tammany  Ring  was  at  its 
height,  that  in  three  years  the  same  political  organ- 
isation, with  but  a  slight  change  of  leaders,  would 
be  able  to  control  the  affairs  of  this  city,  that 
person  would  have  been  laughed  to  scorn.  Yet, 
with  but  one  important  exception  (the  register), 
every  Tammany  Hall  nominee  for  local  office  was 
elected  yesterday." 

The  breakdown  of  the  cause  of  reform  in  the 
city  had,  however,  been  accompanied  by  a  triumph 
of  the  reform  movement  in  the  State,  in  the  election 
as  Governor  of  Mr.  Samuel  J.  Tilden.  Mr.  Tilden 
had  borne  a  conspicuous  part  in  the  impeachment 
of  the  Ring  judges  and  the  prosecution  of  the  Ring 
thieves.  The  analysis  of  the  Broadway  Bank  accounts 
showing  the  percentages  on  which  the  Ring  plunder 
had  been  divided  was  done  under  his  direction, 


286          LIFE  OF  SIMON  STERNE      CHAP. 

and  was  virtually  his  work.  Mr.  Tilden's  nomina- 
tion for  Governor  was  scornfully  regarded  by  the 
practical  politicians  of  his  party,  and  nobody  could 
have  been  more  surprised  than  they  at  its  brilliantly 
successful  issue.  On  the  question  of  municipal 
reform  Mr.  Tilden  entertained  sentiments  in  sub- 
stantial accord  with  those  held  by  Mr.  Sterne. 
One  of  the  first  deliverances  of  the  new  Governor 
was  the  preparation  of  a  formal  message  on  this 
subject  in  which  he  laid  down  as  among  the 
essentials  of  local  self-government  the  following : — 
"  (i)  That  there  be  an  organism  under  which  the 
elective  power  of  the  people  can  act  conveniently 
and  effectively,  and  exercise  an  actual  control  at 
one  election  over  those  who  represent  it  in  the 
local  administration  ;  (2)  that  in  voting  upon  the 
administration  of  local  affairs,  the  popular  attention 
and  the  popular  will  be  freed,  as  far  as  possible, 
from  disturbing  elements,  especially  from  compli- 
cations with  State  and  national  politics."  Governor 
Tilden  had  previously  pointed  out  in  his  inaugural 
message  to  the  Legislature  that  it  was  often  asked 
to  pass  laws  from  New  York  City  under  the  pres- 
sure of  a  public  opinion  created  by  abuses  and 
wrongs  of  local  administration  that  found  no  other 
method  of  redress.  When  the  injured  taxpayer 
could  discover  no  mode  of  removing  a  delinquent 
official,  and  no  way  of  holding  him  to  account  in 
the  courts,  he  assented  to  an  appeal  to  the  legisla- 
tive power  at  Albany ;  and  an  Act  was  passed 
whereby  one  functionary  was  expelled,  and  by  some 
device  the  substitute  selected  was  put  in  office. 
Differing  in  politics  as  the  city  and  State  did,  and 


ix  MUNICIPAL  REFORM  287 

with  all  the  temptations  to  individual  selfishness 
and  ambition  to  grasp  patronage  and  power,  the 
great  municipal  trusts  soon  came  to  be  the  traffic 
of  the  lobbies.  It  was  long  since  the  people  of 
the  city  of  New  York  had  elected  any  mayor  who 
had  the  appointment  after  his  election  of  the 
important  municipal  officers.  There  had  not  been 
an  election  in  many  years  in  which  the  elective 
power  of  the  people  was  effective  to  produce  any 
practical  results  in  respect  to  the  heads  of  depart- 
ments in  which  the  active  governing  power  really 
resided.  A  new  disposition  of  the  great  municipal 
trusts  had  been  generally  worked  out  by  new 
legislation.  The  arrangements  were  made  in  secret; 
public  opinion  had  no  opportunity  to  act  in  discus- 
sion or  power  to  influence  results.  Inferior  offices, 
contracts,  and  sometimes  money  were  means  of 
competition,  from  which  those  who  could  not  use 
similar  weapons  were  excluded. 

It  was  to  endeavour  to  find  a  remedy  for  this 
state  of  things  that  a  Commission  was  appointed, 
on  the  recommendation  of  the  Governor,  to  report 
to  the  Legislature  such  laws  or  constitutional 
amendments  as  might  be  required  for  the  better 
government  of  cities.  Of  this  Commission  Mr. 
Sterne  was  a  member,  and  he  had  as  his  associates 
Messrs.  William  M.  Evarts,  Oswald  Ottendorfer, 
E.  L.  Godkin,  Samuel  Hand,  Joshua  M.  Van  Cott, 
James  C.  Carter,  William  Allen  Butler,  Judge  John 
A.  Lott,  Edward  Cooper,  and  Henry  F.  Dimock. 
It  is  needless  to  say  that  the  report  submitted  by 
this  body  was  a  very  able  one  ;  but  as  one  of  the 
amendments  which  it  recommended  to  the  City 


288          LIFE  OF  SIMON  STERNE      CHAP. 

Charter  contemplated  the  election  of  a  Board  of 
Finance  by  a  restricted  vote,  the  whole  scheme  fell 
under  the  popular  disapproval  which  this  part  of  it 
had  excited.  Speaking  of  the  subject  ten  years  later, 
Mr.  Sterne  said  that  the  amendments  to  the  Con- 
stitution proposed  by  the  Commission  were  never 
submitted  to  the  vote  of  the  people,  partly  because 
they  were  misunderstood,  and  partly  because  of  the 
absence  of  courage  among  the  political  leaders  of 
the  State.  His  own  position  in  regard  to  this 
matter  had  been  so  constantly  represented  and 
misunderstood,  that  he  felt  impelled  to  make 
public  the  following  explanation: — 

I  was,  from  the  outset,  in  favour  of  the  adoption  of  a 
plan  of  minority  representation,  being  firmly  convinced 
that  the  citizens  of  New  York  would  not  favourably 
entertain  anything  that  savoured  of  any  limitation  of  the 
suffrage.  When  I  found,  however,  that  that  was  hope- 
less of  accomplishment  through  that  Commission,  I  felt 
that  the  only  alternative  was  to  create  an  entirely  new 
organisation  to  exercise  a  veto  power  over  expenditures, 
leaving  to  universal  suffrage  the  election  of  mayor,  alder- 
men, and  all  other  officers  now  elective,  and  strengthening 
instead  of  diminishing  their  functions,  as  the  Commission 
recommended,  stripping  from  the  Legislature  the  power  of 
interference  which  it  now  has,  and  lodging  all  political 
power  in  relation  to  the  city  in  the  hands  of  properly 
elected  city  officers.  I  felt,  in  common  with  my  associ- 
ates, that  somewhere  within  the  limits  of  that  city  some 
Conservative  power  should  be  found  to  exercise  a  mere 
veto  upon  extravagance  and  corrupt  expenditures,  and  this 
was  the  only  power  which  was  attempted  to  be  lodged  in 
the  hands  of  the  so-called  Board  of  Finance.  But  it  is 
useless  now  to  discuss  this  plan,  because,  without  any 
direct  vote  of  the  people  ever  being  had  upon  it,  there 


ix  MUNICIPAL  REFORM  289 

seems  to  be  a  general  impression  that  political  power, 
once  granted,  cannot  be  modified,  even  if  not  withdrawn, 
although  such  modification  is  for  the  good  of  those  to  be 
affected  thereby. 

This  statement  was  made  before  a  meeting 
of  the  German -American  Citizens'  Association  in 
1887  on  the  proposed  constitutional  convention 
and  the  work  before  it.  Mr.  Sterne  was  steadfastly 
of  the  opinion  that  not  the  least  important  part  of 
this  work  related  to  the  transfer  to  the  people  of 
the  cities  of  the  State  an  effective  control  over  the 
management  of  their  own  affairs.  He  recalled  the 
fact  that  in  the  fifteen  years  preceding  1887,  New 
York  City  had  had  a  succession  of  so-called  busi- 
ness men  as  mayors.  Messrs.  Havemeyer,  Ely, 
Wickham,  Grace,  Cooper,  Edson,  and  Hewitt  were 
all  business  men  who  had  achieved  distinction  in 
their  respective  walks  in  life,  and  yet  the  burden 
of  taxation  had  not  been  lifted.  The  city  had 
grown  enormously,  and  the  taxable  value  of  its 
property  was  constantly  increasing.  The  improve- 
ments alone  which  had  been  made  within  the  past 
decade,  and  had,  therefore,  added  to  the  taxable 
area,  should  have  considerably  lightened  the  per- 
centage of  taxation  ;  but  notwithstanding  all  this, 
together  with  the  marked  reduction  in  the  interest 
charge,  there  was  a  constantly  growing  accumula- 
tion of  debt,  and  a  slow  but  steady  rise  in  the 
scale  of  taxation  from  year  to  year.  The  Mayor, 
however  good  his  intentions,  could  effect  but  little 
practical  reform  so  long  as  the  Legislature  was 
able  to  impose  on  the  city,  against  its  will  and 
against  its  protest,  vast  expenditures  for  so-called 


290          LIFE  OF  SIMON  STERNE      CHAP. 

public  improvements.  Since  1857  no  session  of 
the  Legislature  had  passed  by  without  creating  a 
vast  number  of  changes  in  the  laws  relating  to  the 
government  of  the  larger  cities  of  the  State.  In 
1857,  in  1869,  in  1870,  and  in  1871,  and  again 
in  1873,  and  so  on  downward,  the  Charter  of  the 
city  of  New  York  had  been  changed,  had  been 
tinkered  with,  and  had  been  modified  and  con- 
trolled as  party  dictates  demanded.  Power  had 
been  taken  from  one  department  and  transferred 
to  another  ;  vast  amounts  of  expenditure  had  been 
imposed  upon  the  city  of  New  York  by  mere 
legislative  will  and  direction,  which  never  would 
have  been  sanctioned  even  by  a  corrupt  city  alder- 
manic  Board,  and  not  only  the  government  of  the 
city  of  New  York,  but  that  of  every  other  large 
city  of  the  State,  had  been  a  prey  to  the  legislative 
will,  swayed  by  party  motives  and  by  sinister  and 
pecuniary  interests. 

Hence  the  desire  of  residents  and  citizens  of 
incorporated  cities  had  been  well-nigh  universal 
for  true  instead  of  assimilated  Home  Rule,  and  that 
in  some  way  or  another  a  form  of  charter  for  the 
various  cities  of  the  State  should  be  incorporated 
into  the  fundamental  law  of  the  State,  so  that  for 
weal  or  for  woe,  the  cities  should  have  in  their 
own  hands  the  control  of  their  own  destinies. 
Thus,  Mr.  Sterne  held,  that  the  primary  amend- 
ment to  be  demanded  from  the  Constitutional 
Convention  was,  that  even  if  New  Yorkers  could 
not  otherwise  improve  their  city  administration, 
they  should  be  permitted,  at  least,  to  enjoy  their 
misgovernment  close  at  home,  and  to  exercise 


ix  MUNICIPAL  REFORM  291 

whatever  influence  they  might  be  able  to  use  quite 
under  their  own  eyes  at  the  City  Hall,  and  not 
be  remitted  to  the  tender  mercies  of  the  mem- 
bers from  Sullivan,  St.  Lawrence,  and  Hamilton 
counties,  in  the  determination  of  how  much  they 
should  be  taxed,  and  for  what  purposes  and 
objects.  But  the  securing  of  Home  Rule  was  but 
one  step  in  the  right  direction  ;  and  Mr.  Sterne 
argued  that,  if  possible,  such  a  home  government 
should  be  secured  that  the  people  might  live  under 
it  with  pride  and  decency.  To  do  this,  he  held  it 
to  be  necessary  so  to  reorganise  the  city  govern- 
ment as  to  create  two  elements  which  were  sorely 
wanted — one,  efficiency  on  the  part  of  the  execu- 
tive department  ;  and  the  other,  true  deliberation 
and  advice  on  the  part  of  the  Legislative  depart- 
ment. His  plan  was  to  give  to  the  Executive  the 
power  of  removal,  as  well  as  the  power  of  appoint- 
ment of  the  heads  of  departments,  and  to  make 
departments  single-headed  except,  possibly,  the 
department  of  police,  or  in  lieu  thereof,  a  larger 
department  of  public  safety,  which  should  include 
the  departments  of  police,  public  health,  and  fire 
— correlative  jurisdictions  requiring  co-operative 
aid, — and  wherein  alone  it  might  be  judicious  to 
have  a  commission  of  five  persons  to  wield  collec- 
tively these  important  functions.  He  advised  that  it 
should  be  made  incumbent  on  these  departments 
to  send  to  the  Legislative  chamber  of  the  city  one 
of  its  members  or  its  chief  to  answer  questions 
and  take  part  in  the  deliberations  without  voting, 
so  that  the  department  should  be  constantly  under 
public  scrutiny  and  subject  to  a  public  examination. 


292          LIFE  OF  SIMON  STERNE       CHAP. 

All  this  presupposed  not  only  an  increase  of 
the  dignity  of  the  Legislative  department,  but  its 
election  in  a  different  way  and  by  a  different  con- 
stituency from  that  established  by  law.  It  was  the 
Charter  amendments  which  the  Tweed  Ring  bought 
from  the  Legislature  in  1870  and  1871  which 
stripped  the  Board  of  Aldermen  of  all  substantial 
legislative  functions,  and  thereby  of  all  character, 
and  left  the  Board  the  mere  power  of  granting 
away  franchises  without  any  power  to  exercise 
control  for  good.  As  a  consequence,  only  such 
men  sought  the  office  as  discovered  in  the  only 
function  left  to  the  aldermen — that  of  granting 
franchises  in  relation  to  the  use  of  the  streets  of 
the  city  of  New  York — an  opportunity  for  profit. 
That  the  Board  of  Aldermen  had  grown  from  bad 
to  worse  since  1871,  Mr.  Sterne  held  to  be  a  direct 
consequence  of  the  law  which  stripped  its  members 
of  truly  legislative  power.  He  therefore  insisted 
that  it  must  either  be  restored  to  its  proper  legis- 
lative function  or  abolished  altogether,  since  an 
absolutely  despotic  Government  was  better  than  a 
sham  democracy.  The  Board  must  be  enabled  to 
hold  the  executive  officers  of  the  city  to  a  well- 
defined  responsibility,  and  there  should  be  con- 
ferred on  it  part  of  the  function  exercised  by  the 
Legislature,  properly  to  supervise  and  determine 
the  objects  and  purposes  of  city  expenditure.  In 
short,  his  position  was  that  if  the  dignity  of  the 
position  of  the  aldermen  could  be  raised,  and  the 
character  of  their  election  and  their  constituency 
could  be  changed,  legislative  power  might  be  safely 
lodged  in  their  hands. 


rx  MUNICIPAL  REFORM  293 

It  was  not  till  1896  that  Mr.  Sterne  had  the 
satisfaction  of  seeing  incorporated  in  the  organic 
law  of  the  State  radical  changes  in  the  relation 
between  the  State  and  incorporated  cities.  These 
fell  far  short  of  the  changes  which  he  had  advo- 
cated, but  they  marked  at  least  a  considerable  step 
in  the  right  direction.  Under  the  Constitution,  as 
then  amended,  the  cities  of  the  State  are  classified 
according  to  the  latest  State  enumeration  into  three 
classes,  of  which  the  first  includes  all  cities  having 
a  population  of  250,000.  Laws  relating  to  the 
property,  affairs,  or  government  of  cities,  and  the 
several  departments  thereof,  are  divided  into  general 
and  special  city  laws — general  laws  being  those 
which  relate  to  all  the  cities  of  one  or  more  classes, 
and  special  laws  those  which  relate  to  a  single  city, 
or  to  less  than  all  the  cities  of  a  class.  As  a  partial 
check  upon  legislative  interference  with  the  affairs 
of  cities,  it  is  provided  that  after  any  Bill  for  a 
special  city  law  has  been  passed  by  the  Legislature, 
the  House  in  which  it  originated  shall  immediately 
transmit  a  certified  copy  thereof  to  the  Mayor  of 
such  city.  The  Mayor  is  required  to  return  the 
Bill  within  fifteen  days  to  the  House  from  which 
it  was  sent,  or  if  the  legislative  session  is  ended,  to 
the  Governor,  bearing  the  Mayor's  certificate  as  to 
whether  the  city  has  or  has  not  accepted  the  Bill. 
In  every  city  of  the  first  class  the  Mayor  acts  for 
the  city  in  regard  to  such  a  Bill.  If  the  Bill  relates 
to  more  than  one  city,  it  must  be  transmitted  to  the 
Mayor  of  each  city  to  which  it  relates,  and  is  not 
to  be  deemed  accepted  unless  it  bears  the  formal 
acceptance  of  every  such  city.  If  a  Bill  be  returned 


294          LIFE  OF  SIMON  STERNE      CHAP. 

without  the  acceptance  of  the  city  or  cities  to  which 
it  relates,  it  may,  nevertheless,  again  be  passed  by 
both  branches  of  the  Legislature,  being  then  subject, 
like  other  Bills,  to  the  action  of  the  Governor. 
We  have  expounded  to  very  little  purpose  the 
views  of  Mr.  Sterne  in  regard  to  the  relations 
between  the  Legislature  and  the  cities  of  the  State, 
if  this  summary  of  the  municipal  amendments  does 
not  carry  on  its  face  convincing  demonstration 
that  to  the  teaching  and  influence  of  Simon  Sterne 
the  people  are  largely  indebted  for  such  benefits  as 
they  have  brought  in  their  train. 

Like  most  believers  in  the  possibility  of  muni- 
cipal reform  on  a  non-partisan  basis,  Mr.  Sterne 
had  steadfastly  insisted  on  a  separation  of  City 
from  State  elections,  and  it  was  held  to  be  a  most 
important  gain  for  the  cause  of  better  government 
when  there  was  inserted  in  the  amended  Constitu- 
tion a  provision  that  all  elections  for  city  officers 
should  be  held  in  an  odd  numbered  year,  leaving 
the  even  numbered  years  for  national  and  State 
elections.  That  is  to  say,  the  voters  of  a  city  were 
thus  enabled  to  make  a  clear  distinction  between 
the  issues  to  be  decided  at  elections  of  national  and 
State  officers,  and  those  involved  in  the  choice 
of  the  holders  of  the  chief  positions  of  muni- 
cipal responsibility.  It  became  possible  under  this 
provision  to  make  the  separation  complete  between 
municipal  questions  and  those  which  form  the 
dividing  line  between  the  great  political  parties. 
A  principle  earnestly  contended  for  by  all  who 
have  tried  in  the  last  thirty  years  to  secure  better 
government  for  the  city  of  New  York  was  thus 


ix  MUNICIPAL  REFORM  295 

finally  incorporated  in  the  fundamental  law  of  the 
State. 

With  the  consolidation  of  the  various  municipal 
and  other  divisions  which  went  to  the  formation  of 
the  Greater  New  York,  it  became  necessary  to  pre- 
pare a  charter  suited  to  the  necessities  of  the  new 
metropolitan  constituency.  This  work  had  been 
entrusted  to  a  commission  which  finished  its  labours 
early  in  1897,  and  which  gave  public  hearings  early 
in  that  year  to  citizens  or  public  bodies  desiring  to 
be  heard.  As  intimated  in  a  previous  chapter,  Mr. 
Sterne  made  a  plea  before  this  body  for  the  intro- 
duction of  the  principle  of  minority  representation 
in  the  new  charter,  but  without  effect.  At  the 
same  time,  the  Bar  Association  appointed  a  com- 
mittee to  examine  the  proposed  charter,  of  which 
Mr.  Wheeler  H.  Peckham  was  the  chairman,  and 
Mr.  Sterne  was  one  of  the  members.  In  setting 
forth  what  they  conceived  to  be  the  essential 
requisites  which  any  scheme  for  the  local  govern- 
ment of  such  vast  territory  and  population  should 
possess,  the  Committee  gave  due  weight  to  certain 
principles  for  which  Mr.  Sterne  had  always  con- 
tended. These  were  :  First,  A  large  measure  of 
local  governmental  power  should  be  bestowed  so 
as  to  give  as  little  occasion  as  possible  for  the 
intervention  of  the  legislative  authority  of  the 
State  ;  in  other  words,  wide,  though  not  unlimited, 
scope  should  be  given  to  the  policy  which  goes 
under  the  name  of  Home  Rule.  Second,  This 
power  should  be  wisely  and  skilfully  distributed 
among  the  different  branches  or  departments  of 
the  local  Government  so  as  to  prevent  the  abuse  to 


296          LIFE  OF  SIMON  STERNE      CHAP. 

which  it  is  always  liable.  Third,  The  scheme 
should  be  so  shaped  as  to  make  it  easy  to  trace  the 
credit  for  good,  and  the  responsibility  for  bad 
government  to  the  particular  department  or  officer 
to  which  it  really  belonged,  and  the  people  should 
be  able  to  exercise  a  real  corrective  power  through 
popular  elections.  Fourth,  The  scheme  should 
be  carefully  adapted  to  the  habits  and  needs  of  the 
people  which  it  is  intended  to  serve,  such  adapta- 
tion to  be  shaped,  not  so  much  by  a  regard  to 
theoretical  principles,  as  to  the  teachings  of  actual 
experience  as  found  in  the  history  of  the  former 
local  government  of  the  same  population.  The 
Committee  found  that  the  Charter  failed  to  con- 
form to  most  of  these  requisites,  and  viewed  with 
particular  disfavour  the  constitution  of  the  pro- 
posed Municipal  Assembly.  In  this  body  was 
vested  what  was  described  in  the  language  of  the 
Bill  as  the  legislative  power  of  the  city  of  New 
York,  but  the  actual  legislative  power  accorded  to 
it  was  really  very  meagre.  The  direct  grants  of 
power  were  substantially  those  held  by  the  existing 
Board  of  Aldermen,  and  while  other  and  far  larger 
grants  were  apparently  conferred  upon  the  Muni- 
cipal Assembly,  it  was  only  to  be  curtailed  and 
restricted  or  altogether  destroyed  by  other  pro- 
visions of  the  law.  By  far  the  larger  portion  of 
all  local  legislation  as  to  matters  of  importance  was 
to  be  transacted  or  controlled  not  by  the  Assembly, 
but  by  the  heads  of  some  twenty  departments, 
appointees  of  the  Mayor.  The  Committee  found, 
however,  that  the  obstructive  power  of  the  Assembly 
would  be  very  considerable.  They  did  not  find 


ix  MUNICIPAL  REFORM  297 

that  its  opportunities  for  useful  service  were  so 
much  greater  than  those  afforded  by  membership 
in  the  existing  Board  of  Aldermen  as  to  encourage 
them  to  expect  a  substantial  improvement  in  the 
quality  either  of  the  candidates  for  election  or  of 
those  elected  to  seats  in  the  Municipal  Assembly. 
They,  therefore,  regarded  the  establishment  of  a 
local  legislature  such  as  the  Bill  contemplated  as  a 
measure  of  most  doubtful  utility,  and  they  antici- 
pated what  was  shortly  to  be  demonstrated  in 
practice,  that  the  division  of  the  Municipal  Assembly 
into  two  Houses  would  be  a  serious  obstacle  to 
its  efficiency,  would  tend  to  divide  and  obscure 
responsibility,  and  would  enhance  the  danger  of 
unwise  and  corrupt  obstruction.  It  was  apparent 
to  the  Committee  that  in  adopting  the  numerous 
checks  and  balances  on  the  action  of  the  Assembly, 
the  Charter  Commission  had  recognised  the  fact 
that  the  establishment  of  a  Municipal  Assembly, 
under  the  conditions  accepted,  was  a  hazardous 
experiment.  Further  demonstration  of  this  was 
supplied  in  the  recommendation  by  the  Commission 
of  a  constitutional  amendment  authorising  minority 
or  proportional  representation  in  municipal  elections. 
Mr.  Sterne  set  forth,  clearly  and  succinctly,  his 
personal  objections  to  the  Greater  New  York 
Charter  in  the  following  communication  to 
Governor  Black  : — 

NEW  YORK,  April  17,  1897. 

To  Hon.  FRANK  S.  BLACK, 

Governor  of  the  State  of  New  York. 

Sir — Imperative   professional  engagements,  which  do 
not  admit  of  adjournment,  alone  prevent  me  from  joining 


298          LIFE  OF  SIMON  STERNE      CHAP. 

in  person  the  representatives  of  all  the  organised  pro- 
fessional and  business  interests  of  New  York  City  to  ask 
you  to  veto  the  Bill  recently  passed  (notwithstanding  the 
disapproval  of  Mayor  Strong)  by  the  Legislature,  and 
known  as  the  Greater  New  York  Charter. 

It  is  true  that  a  majority  of  the  citizens  of  New  York 
voted  in  favour  of  consolidation,  but  it  is  reasonable  to 
suppose  that  this  vote  was  given  on  the  assumption  that 
the  Greater  New  York  Charter  would  be  a  monumental 
work  founded  upon  experience,  would  have  enlisted  in 
its  practical  accomplishment  the  ablest  men  in  New  York, 
that  abundance  of  time  would  be  afforded  to  them  to 
produce  a  legislative  measure  harmonising  the  incongruous 
laws  which  now  govern  the  municipalities  which  are  to 
be  united,  and  that  a  great  opportunity  would  be  afforded 
to  guard  the  public  treasury  against  extravagance  and 
incompetency,  and  that  no  too  great  sacrifice  would  be 
imposed  upon  any  portion  of  the  city  to  be  consolidated 
by  the  terms  of  settlement  between  the  associated  bodies 
politic. 

It  was  also  hoped  that  in  the  organisation  of  the 
municipal  legislative  body,  a  recognition  of  the  principles 
of  minority  representation  would  give  to  each  section  of 
our  community  an  opportunity  to  elect  representatives 
of  their  own  choosing,  so  as  to  emancipate  the  voters  of 
New  York  from  the  thraldom  of  party  machinery,  and 
allow  greater  freedom  for  the  issues  of  a  municipal  cam- 
paign to  be  fought  out  on  lines  affecting  the  municipal 
welfare  only,  and  not  disturbed  by  questions  of  national 
politics. 

It  was  also  hoped  that  substantially  and  freely  a  larger 
measure  of  Home  Rule  would  be  afforded  to  the  citizens 
of  New  York,  when  their  city  will  comprise  almost  half 
the  voters  of  the  State. 

In  all  these  expectations,  the  citizens  of  New  York 
have  been  sorely  disappointed,  and,  therefore,  asked  for 
time  for  the  reconsideration  of  the  terms  of  the  instrument 
of  consolidation,  and  for  the  prior  enactment  of  the  con- 


ix  MUNICIPAL  REFORM  299 

stitutional  amendments  which  will  secure  to  the  munici- 
pality the  benefits  of  a  united  Government  unhampered 
by  the  continuance  of  county  government,  and  to  give 
to  its  citizens  minority  or  proportional  representation  to 
prevent  the  absolute  domination  of  some  one  political 
organisation  in  its  government,  and  thereby  enslave  the 
greatest  city  of  the  Union  for  its  personal  and  partisan 
ends. 

The  citizens  of  New  York  also  ask  for  due  time  for 
the  amendment  of  the  sections  of  the  Bill,  so  that  its  many 
defects,  iniquities,  and  provisions  of  questionable  con- 
stitutionality (which  will  be  more  particularly  pointed 
out  to  you  by  my  associates)  may  be  eliminated,  and  the 
great  fear  of  confiscation  through  excessive  taxes,  by  well- 
guarded  provisions,  be  lifted  from  the  owners  of  real 
estate  in  the  part  of  the  consolidated  city  which  has 
heretofore  been  known  as  New  York. 

Perhaps  never  before  in  the  history  of  the  municipality 
of  New  York  has  there  been  such  unanimity  of  appre- 
hension of  evil  from  State  legislation  as  is  felt  and  expressed 
as  to  the  measure  which  we  ask  you  to  disapprove. 

It  is  safe  to  say  that  this  feeling  has  already  adversely 
affected  real  estate  values,  in  the  city  of  New  York  an 
appreciable  percentage,  and  the  consummation  of  the 
mischief  by  your  approval  will  still  more  largely  and 
injuriously  affect  such  values.  But  were  it  known  that 
by  a  large  view  of  your  duty,  this  ill-digested  and  danger- 
ous Bill  would  be  vetoed,  and  that  time  would  be  afforded 
for  the  elaboration  of  a  scheme  of  consolidation,  founded 
in  fair  dealing  and  wisdom,  a  corresponding  rise  and 
activity  would  ensue  in  real  estate  values,  instead  of  doubt, 
depression,  and  loss.  No  better  test  of  real  benefits  for 
injuries  could  be  had  than  this  gauge  of  value.  If  con- 
solidation under  any  condition  would  give  to  New  York 
City  the  impetus  and  advantages  which  the  enthusiastic 
supporters  of  the  measure  before  you  claim  for  it,  the  first 
reflex  of  its  passage  would  have  been  in  an  advancing 
market  for  real  estate.  The  contrary  result  is  its  effect, 


300          LIFE  OF  SIMON  STERNE      CHAP. 

and  this  effect  has  continued  long  enough   to   give  pause 
to  the  most  blinded  advocate  of  the  Bill  before  you. 

I  therefore  ask  you  to  heed  the  protests  of  the  Chamber 
of  Commerce,  of  the  Bar  Association  of  the  city  of  New 
York,  of  the  Board  of  Trade,  of  the  Real  Estate  Exchange 
of  the  city,  of  the  Reform  and  Union  League  Clubs,  and 
of  the  many  citizens  who,  independently  of  organised 
action,  unite  in  asking  at  your  hands  a  veto  of  this 
measure.  This  veto  will  not  be  a  reversal  of  the  popular 
vote  in  favour  of  consolidation,  but  will  grant  such  delay 
as  will  enable  a  union  of  municipal  interests  to  be  formed 
which  will  be  fruitful  of  benefits  in  place  of  evils  and 
regrets. 

These  observations  are  not  intended  as  a  reflection 
upon  the  gentlemen  who  framed  the  Charter.  Many  of 
them  are  men  of  eminent  ability  and  probity.  Several  of 
them  I  count  among  my  own  friends,  who,  doubtless, 
with  reluctance,  signed  a  charter  which  contained  the 
defects  of  a  many-headed  police  department  and  a  dual 
chamber  which  tends  to  destroy  responsibility,  but  all  of 
them  would  candidly  admit  that  the  time  allotted  by  the 
last  Legislature  for  the  completion  of  the  stupendous  work 
which  they  were  called  upon  to  perform  was  much  too 
short  to  enable  them  to  create  such  a  measure  as  they 
must  have  desired  to  produce,  and  since  its  submission 
to  the  Legislature,  no  such  thought,  deliberation,  or  time 
has  been  by  the  law-making  body  given  to  it  to  have 
remedied  in  any  particular  the  defects  from  which  the 
draft  of  the  Bill  suffered. — I  am,  respectfully  yours, 

SIMON  STERNE. 

In  the  fall  of  1 897  the  cause  of  municipal  reform 
suffered  a  serious  reverse  in  the  election  of  the 
Tammany  candidate  for  mayor.  This  was  the 
more  deeply  deplored  by  the  friends  of  good 
government,  because  the  combined  vote  for  the 
Citizens'  Union  and  Republican  candidate  would 


ix  MUNICIPAL  REFORM  301 

have  sufficed  for  the  defeat  of  the  Tammany  can- 
didate. What  Mr.  Sterne  called  the  reconquest  of 
New  York  by  Tammany  furnished  him  with  a  text 
for  a  very  instructive  review  of  the  causes  which 
had  contributed  to  so  deplorable  a  result.  In  an 
article  in  the  Forum  of  January  1898,  he  pointed 
out  that  when,  three  years  previously,  the  citizens 
of  New  York  wrested  from  Tammany  Hall  the 
control  over  the  city  government  and  elected  as 
mayor  a  gentleman  of  good  repute  as  merchant 
and  bank  president,  there  was  inaugurated  what 
was  supposed  to  be  a  new  era  in  municipal  adminis- 
tration of  efficient,  honest,  and  faithful  public 
service.  He  admitted  that  the  return  of  Tammany 
to  power  without  the  element  of  patronage  to  assist 
it  seemed  to  confirm  the  views  of  those  who  look 
with  distrust  upon  Democratic  institutions,  particu- 
larly in  their  application  to  urban  population,  and 
apparently  supported  the  disparaging  opinions  as 
to  the  intellectual  and  moral  qualities  of  the  New 
York  electorate,  which  had  been  expressed  by 
eminent  foreign  critics.  But  he  held  that  the 
causes  of  the  reconquest  of  the  city  of  New  York 
by  Tammany  in  1897  must  be  sought  for  in  the 
history  of  the  economic  and  political  conditions  of 
the  city  during  the  three  years  of  Mayor  Strong's 
administration,  in  the  State  legislative  proceedings 
during  these  three  years,  and  in  the  use  which 
was  made  by  the  citizens  of  New  York  and 
the  city  administration  of  the  opportunities 
for  better  government  afforded  by  the  election 
of  1894. 

Referring  to  the  twenty  years  prior  to   1895, 


302          LIFE  OF  SIMON  STERNE      CHAP. 

during  the  greater  period  of  which  New  York*  had 
been  under  Tammany  rule,  Mr.  Sterne  thought  it 
fair  to  assume  that  a  large  proportion  of  the  annual 
budgets  and  a  considerable  proportion  of  the  in- 
debtedness of  the  city  incurred  during  that  time 
represented  waste  and  extravagance,  unnecessary 
expenditure,  and  crystallised  fraud.  During  the 
last  year  of  Tammany  administration  the  tax-rate 
had  been  $1.79  per  hundred.  This  was  a  large 
enough  exaction  from  the  thrifty  and  industrious 
part  of  the  people  whose  money  is  invested  in  real 
property,  and  who  had  the  well-grounded  expecta- 
tion that  the  saving  which  would  be  effected  by 
the  bank  president's  administration  of  the  affairs  of 
the  city  would  result  either  in  a  considerably  lower 
expenditure  of  money,  and  thereby  in  a  reduction 
of  the  tax-rate,  or  in  an  enormous  increase  in  the 
efficiency  of  all  the  departments  by  the  expenditure 
of  a  like  sum  of  money.  In  this  expectation  the 
citizens  of  New  York  were  lamentably  disappointed. 
During  the  first  year  of  Mayor  Strong's  ad- 
ministration the  tax -rate  went  up  to  $1.91, 
though  the  assessed  valuation  of  property  had 
increased  $13,615,625,  while  the  city  debt 
increased  $6,672,165.  There  was  a  further 
increase  of  debt  in  1896  to  the  amount  of 
$8,260,505,  and  in  1897  to  the  amount  of 
$8,310,832.  The  increase  of  the  ordinary 
expenses,  which  kept  pace  with  the  increase  of  the 
debt,  was  a  sore  and  serious  disappointment  to  the 
taxpayer,  because  he  argued,  in  the  rough-and- 
ready  fashion  of  popular  logic,  that  either  it  was 
true  that  the  preceding  Tammany  government 


ix  MUNICIPAL  REFORM  303 

was  an  extravagant  and  dishonest  one,  and  that, 
therefore,  the  amount  of  expenditure  in  these 
departments  was  ridiculously  in  excess  of  actual 
needs  ;  or  it  was  not  true,  and  the  money  expended 
under  Tammany  was  a  necessary  expenditure  ;  or, 
as  a  third  alternative,  that  the  new  administration, 
from  which  so  much  good  was  hoped,  was,  for 
some  cause  too  occult  for  him  to  understand,  in- 
capable of  affording  relief.  The  second  year  after 
the  reform  administration  came  into  power  the 
tax -rate  rose  to  $2.14,  the  assessed  valuation 
of  real  and  personal  property  having  been  in- 
creased $89,537,243  over  that  of  the  previous 
year,  and  $103,152,868  over  1894.  During  the 
third  and  last  year  of  the  reform  administra- 
tion the  tax-rate  was  $2.10,  though  the  assess- 
ment had  been  increased  $62,150,951  over 
that  of  1896,  and  $165,303,819  over  that  of 
1894.  During  those  three  years  the  actual  values 
of  property  had,  through  the  erection  of  huge 
office-buildings,  been  more  largely  increased  than 
during  any  previous  period  in  the  history  of  the 
city,  and  the  tax -rate  should  have  decreased 
accordingly. 

For  years  the  Legislature  and  the  City  Govern- 
ment had  vied  with  each  other  in  multiplying 
offices  so  as  to  strengthen  the  political  organisation 
in  power,  or,  when  the  party  in  control  of  the 
State  differed  from  that  in  the  city,  in .  adding  to 
such  offices  so  as  to  divide  between  the  party  in 
control  of  the  State  and  the  political  organisation 
in  power  in  the  city  the  incumbents  of  the  new 
offices  thus  created.  Mr.  Sterne  pointed  out  that 


304          LIFE  OF  SIMON  STERNE      CHAP. 

it  was  the  duty  of  the  reform  administration  to 
get  rid  of  all  these  useless  and  expensive  additions 
of  increased  office-holders  and  clerical  force,  to 
make  an  official  day  of  labour  in  the  public  offices 
six  or  seven  hours  instead  of  three  or  four,  and  in 
every  way  to  diminish  the  expenses  of  the  various 
departments  of  the  city  of  New  York  to  reason- 
able business  limits.  What  was  done  was  to  put 
in  every  office  originally  created  for  mere  purposes 
of  expenditure  a  follower  of  one  of  the  factions  or 
organisations  which  made  up  the  army  of  the 
reform  movement  of  1894,  to  increase  instead  of 
diminish  many  salaries  in  every  department,  and 
to  make  a  more  lavish  distribution  of  public  money 
for  new  construction  of  highways  and  buildings 
than  had  theretofore  been  done.  It  is  true  that  in 
one  department  of  the  city  administration — that  of 
street-cleaning — a  degree  of  efficiency  was  attained 
hitherto  unknown  in  the  city  of  New  York,  and 
also  that  the  judicial  administration  of  the  police 
justices'  courts  was  raised  in  dignity  by  the  selec- 
tion of  a  higher  order  of  incumbents.  Had  the 
superior  efficiency  in  the  work  of  street-cleaning 
been  attained  without  the  expenditure  of  a  dollar 
more  than  the  amount  which  the  commissioner  had 
at  his  disposal  when  the  department  was  under 
Tammany  rule,  it  would  have  furnished  a  complete 
demonstration  of  the  corruption  and  inefficiency 
of  Tammany  as  compared  with  the  work  of  the 
reform  administration.  It  did,  however,  involve 
an  expenditure  of  an  average  of  about  $500,000 
a  year  above  previous  appropriations  to  accomplish 
the  result. 


ix  MUNICIPAL  REFORM  305 

So  with  the  Department  of  Education,  it  would 
have  been  a  fine  object-lesson  for  the  citizens  of 
New  York  if  they  could  have  had  the  administra- 
tion of  the  public  schools  removed  from  improper 
influences  and  conducted  upon  a  high  plane  of 
efficiency  at  an  expense  no  greater  than  that  which 
had  been  incurred  under  the  waste  and  knavery  of 
Tammany  rule.  But  the  superior  efficiency  of  the 
schools  was  attained  at  a  cost  in  1895  of  $266,770 
in  excess  of  that  of  1894,  in  1896  of  $1,028,867, 
and  in  1897  of  $1,437,501  in  excess  of  that 
of  the  last  year  of  Tammany  administration, 
and  this  without  counting  additions  to  expendi- 
tures provided  for  by  the  issue  of  bonds.  Still,  in 
Mr.  Sterne's  judgment,  the  people  would  have 
found  no  fault  with  these  expenditures  if  in  other 
departments  compensating  savings  had  been  made, 
because  they  argued  that  if  20  per  cent  of  the 
$34,000,000  theretofore  annually  expended  by 
the  city  of  New  York,  exclusive  of  the  interest 
charge  on  the  public  debt  and  the  city's  propor- 
tion of  State  taxation,  was  wasted  under  Tammany 
control,  there  should  have  been  a  saving  of  almost 
$7,000,000  a  year,  out  of  which  these  beneficial 
additional  expenses  for  education  and  street- 
cleaning  could  have  been  made,  and  still  leave 
$4,000,000  to  go  to  the  credit  of  the  tax- 
payers and  the  reduction  of  their  burdens.  But 
the  expenditures  of  public  money  during  the  three 
years  of  the  term  of  Mayor  Strong,  who  stood 
before  the  community  for  decency  as  compared 
with  the  professional  politicians  banded  together 
under  the  name  of  Tammany,  were,  with  some 

x 


306          LIFE  OF  SIMON  STERNE      CHAP. 

few  exceptions,  as  large  as  in  the  years  which  had 
preceded  his  incumbency. 

Mr.  Sterne  desired  it  to  be  understood  that  no 
one  more  than  he  deplored  the  unfortunate  mixing 
up  and  confounding  of  the  work  of  the  outgoing 
city  administration  with  the  general  desire  for  the 
reform  of  our  American  municipal  governments. 
He  said  that  he  had  been  striving  since  he  arrived 
at  manhood  to  remove  from  that  government  the 
reproaches  which  might  justly  be  laid  at  its  door, 
but  he  could  not  shut  his  eyes  to  the  fact  that  the 
administration  of  Mayor  Strong  had,  from  the 
economic  side,  been  a  lamentable  failure,  and  that 
any  movement  which  was  allied  with  it,  or  stood 
for  the  same  class  of  thought,  could  not  for  the 
second  time  "  enthuse  "  the  people  of  the  city  of 
New  York.  On  the  financial  side  there  was  the 
record  of  the  total  expenditures,  which,  starting 
with  $38,395,094  in  1894,  went  on  increasing 
every  year  until  they  reached  $48,229,558  in 
1897.  Deducting  from  this  an  increase  of 
$2,500,000  in  the  State  taxes,  and  about 
$400,000  for  increase  of  interest  on  the  public 
debt,  there  still  remained  an  increase  of  about 
$7,000,000  in  the  general  expenditures.  The 
debt  of  the  city,  which  at  the  close  of  1894  was 
$105,777,855,  had  reached  by  1897  the  sum 
of  $129,021,357,  showing  a  total  increase  of 
$23,243,502  during  the  three  years  of  Mayor 
Strong's  administration.  Before  that  administra- 
tion came  into  existence,  the  heads  of  the  city 
government  had  been  accustomed  to  answer  the 
charge  of  extravagance  by  the  excuse  that  the 


ix  MUNICIPAL  REFORM  307 

expenditures  were  imposed  by  the  action  of  the 
Legislature.  To  some  of  the  expenditures  of  the 
three  years  in  question  the  same  excuse  will  apply, 
but  simultaneously  with  the  beginning  of  Mayor 
Strong's  administration  there  came  into  force  a 
constitutional  amendment  which  subjected  any  Bill 
involving  expenditures  by  the  city  government  to 
the  Mayor's  veto,  reserving  to  the  Legislature, 
however,  the  right  to  pass  the  Bill  over  such  veto. 
The  expenditures  involved  in  such  legislation 
which  met  with  the  approval  of  the  Mayor  are, 
therefore,  fairly  chargeable  to  his  administration. 

But  if  the  administration  which  made  way  for 
Tammany  in  1897  was  a  failure  from  the  economic 
side,  it  was  equally  a  failure,  in  the  judgment  of  Mr. 
Sterne,  from  the  political  side.  Early  in  the  year 
1895,  the  Legislature  passed  a  bi-partisan  police  Bill 
which  was  of  such  a  character  as  to  challenge  the 
adverse  criticism  of  almost  all  the  conservative  ele- 
ments which  aided  in  the  election  of  Mr.  Strong.  It 
continued  to  enforce  that  feature  of  police  manage- 
ment which  had  divided  responsibility  and  aided 
corruption.  It  was,  in  the  opinion  of  competent 
judges,  worse  than  the  law  which  preceded  it  and 
for  which  it  was  substituted  ;  yet  it  was  approved 
by  the  Mayor.  The  commission  to  draft  the 
Greater  New  York  Charter  seemed  to  recognise  the 
fact  that,  without  minority  representation  in  the 
municipal  legislative  Boards,  the  experiment  which 
that  Charter  initiated  might  prove  a  dangerous  one. 
They  expressed  a  doubt,  however,  about  the  con- 
stitutionality of  such  a  provision,  and  yet,  despite 
its  importance  in  the  scheme  of  government,  no 


308          LIFE  OF  SIMON  STERNE      CHAP. 

serious  effort  was  made,  either  on  their  recom- 
mendations or  by  the  city  authorities,  to  postpone 
the  adoption  of  the  Greater  New  York  Charter 
until  minority  representation  could  be  constitution- 
ally secured  in  the  Municipal  Assembly,  so  that 
should  the  city  be  recaptured  by  Tammany,  a 
substantial  proportion  of  political  power  could 
still  be  retained  by  the  better  class  of  the  citizens 
of  New  York.  The  matter  was  disposed  of  by 
the  Commission,  of  which  the  Mayor  was  a 
member,  recommending  that  the  Legislature  pass  a 
constitutional  amendment  providing  for  minority 
representation  in  municipal  bodies.  This  recom- 
mendation was  wholly  disregarded  by  the  Legisla- 
ture. The  Charter  was  thereupon  promptly  passed, 
and  through  its  instrumentality  the  hold  of  the 
powers  that  work  for  evil  upon  the  city  treasury  and 
upon  the  appropriation  of  other  people's  money  was 
strengthened  instead  of  loosened.  The  term  of 
office  of  the  Mayor  was  lengthened  to  four  years, 
and  his  powers  greatly  enlarged  ;  the  incumbents 
of  office  were  made  more  dependent  upon  the 
Mayor  ;  the  length  of  the  terms  of  office  of  heads 
of  departments  was  increased,  and  no  safeguard 
was  placed  anywhere  to  guard  against  the  event 
which  happened,  of  a  sinister  and  dangerous 
organisation  once  again  taking  possession  of  the 
city  of  New  York. 

The  liquor  law  passed  during  Tammany's  con- 
trol of  the  city  was  enacted  with  the  view  of  not 
being  strictly  enforced  in  a  cosmopolitan  com- 
munity like  that  of  New  York,  and  probably  also 
with  the  view  of  a  corrupt  acquiescence  in  its 


ix  MUNICIPAL  REFORM  309 

breach.  During  Mayor  Strong's  administration, 
and  in  the  hottest  summer  months,  Mr.  Roosevelt, 
the  President  of  the  Police  Board,  ordered  this  law 
to  be  strictly  and  rigidly  enforced,  and  in  this  he 
had  the  full  support  of  the  Chief  Executive  of  the 
city.  This  action  alienated  from  the  reform  move- 
ment thousands  upon  thousands  of  its  supporters, 
who  regarded  such  strict  enforcement  as  an  impair- 
ment of  their  personal  liberty,  and  a  senseless  and 
needless  aggravation  of  their  discomfort  during 
a  protracted  period  of  an  extreme  heat  in  1895. 
Finally,  the  Republican  party  insisted  upon  plac- 
ing upon  the  statute  book  an  excise  law  whose 
enforcement  went  far  beyond  Mr.  Roosevelt's 
position  during  the  summer  of  1895,  and  inter- 
fered with  the  habits  of  the  German  population 
of  the  city  to  a  greater  extent  than  had  been 
attempted  before.  They  met  the  taunt  that  they 
should  not  allow  Sunday  beer  to  be  of  more 
importance  to  them  than  good  government 
by  the  answer  that  they  should  not  be  asked  to 
sacrifice  an  innocent  indulgence  to  Puritanical 
legislation  ;  that  the  question  of  their  personal 
liberty  was  quite  as  important,  as  a  matter  of 
principle,  as  good  government  in  this  city.  Mr. 
Sterne  did  not  attempt  to  decide  whether  they  were 
right  or  wrong  in  this  contention,  but  contented 
himself  by  showing  that  there  was  thus  produced 
in  a  large  class  of  the  voting  population  a  feeling 
of  positive  hatred  against  everything  labelled  Re- 
publican, which  told  with  great  force  against  the 
candidacy  of  Mr.  Low. 

Thus,  when  the  question  was  agitated  in  the 


310          LIFE  OF  SIMON  STERNE      CHAP. 

summer  of  1897,  of  nominating  a  Citizens'  Union 
candidate  for  the  Mayoralty  of  the  city  of  New 
York,  account  had  to  be  taken  of  a  widespread 
feeling  of  resentment  and  disappointment  with  the 
existing  administration,  and  it  required  the  utmost 
delicacy  and  tact  to  overcome  the  mass  of  opposi- 
tion which  had  been  accumulating  because  of  these 
successive  blunders,  and  to  weld  it  into  a  united 
movement  against  Tammany.  Under  the  existing 
system  of  representative  government,  which  recog- 
nises majorities  or  pluralities  only,  a  community 
has  no  means  of  making  its  protest  against  misrule 
effective  except  by  voting  for  those  in  opposition. 
Such  a  vote,  Mr.  Sterne  insisted,  could  in  no  way 
be  held  to  imply  sympathy  with,  or  confidence  in, 
the  organisation  helped  by  the  protest  of  1897. 
It  was  his  opinion,  that  of  the  234,000  votes  re- 
corded in  favour  of  the  Tammany  candidate  for 
Mayor,  not  one -half  were  in  sympathy  with 
Tammany.  A  very  large  proportion  of  this  vote 
represented  the  voters'  disappointment  at  the 
measures  which,  and  resentment  against  the  men 
who  had,  during  the  last  three  years,  oppressed 
and  disappointed  them.  Unfortunately,  Mr.  Low's 
candidacy  was  publicly  supported  by  many  of  the 
men  in  close  affiliation  with  Mayor  Strong's  ad- 
ministration and  by  the  Mayor  himself.  The 
result,  therefore,  in  1897 — the  reconquest  of  New 
York  by  Tammany — Mr.  Sterne  held  to  be  no 
indication  of  the  breakdown  of  American  institu- 
tions or  of  free  government.  It  was  the  better 
element  of  New  York  which  made  the  mistakes 
that  resulted  in  the  weakening  of  the  garrison  and 


ix  MUNICIPAL  REFORM  311 

the  opening  of  the  gates  for  the  entrance  of  the 
enemy  who  had  been  ejected  three  years  before. 
Nor  was  it  true  that  New  York  had  deliberately 
chosen  a  corrupt  government,  and  that  it  might 
be  legitimately  inferred  that  New  York  was  itself 
corrupt.  New  York  was  resentful  at  the  mis- 
carriage of  its  efforts  three  years  before.  No 
people  living  under  democratic  institutions  as 
now  organised,  and  without  true  minority  repre- 
sentation in  full  operation,  has  an  opportunity  to 
exhibit  such  resentment  except  by  inflicting  upon 
itself  another  wound,  and  that  was  the  unfortunate 
situation  in  the  city  of  New  York  in  the  autumn 
of  1897.  Mr.  Sterne  concludes  his  judicial  review 
of  the  causes  of  Tammany's  reconquest  of  New 
York  by  the  following  personal  statement  : — 

The  writer  of  this  article  hesitated  for  some  time  as  to 
the  wisdom  of  setting  forth  before  the  community  the 
facts  herein  stated,  he  having  participated  in  every  reform 
movement  undertaken  in  the  city  of  New  York  from 
Tweed's  day  down  to  and  including  the  advocacy  of  the 
candidacy  of  Seth  Low  for  the  Mayoralty  at  the  election 
of  1897,  and  sharing  with  his  fellow-commit teemen  of 
seventy  of  1894  the  responsibility  of  the  election  of 
Mayor  Strong.  Yet  the  battle  of  municipal  reform  must 
be  fought  again  and  again  until  success  perches  upon  its 
banner,  and  when  won  it  should  be  made  a  permanent 
victory  over  the  enemies  of  good  government,  and  that 
can  be  done  only  by  fighting  on  better  lines  than  the 
platforms  of  1894  and  1897.  And  to  do  this  effectually, 
there  must  also  be  a  clear  understanding  and  no  illusions 
about  the  causes  of  the  failure  of  the  friends  of  good 
government  in  the  campaign  of  1897,  and  any  contribu- 
tions to  public  discussion  having  that  end  in  view  must 
ultimately  have  beneficial  results. 


312          LIFE  OF  SIMON  STERNE      CHAP. 

Into  the  municipal  contest  of  1899  which  turned 
upon  the  question  of  an  independent  and  unassessed 
judiciary,  Mr.  Sterne  threw  himself  with  unabated 
ardour.  In  a  speech  delivered  at  the  Citizens' 
Union  meeting  in  Cooper  Union  on  October  28, 
Mr.  Sterne  pointed  out  that  the  issue  once  more 
presented  to  the  citizens  of  New  York,  was  whether 
they  should  rule  themselves  or  permit  Tammany 
Hall  to  designate  the  occupants  of  the  seat  of 
justice.  He  remarked  that  New  Yorkers  could 
not  complain  in  that  year,  that  they  had  but  a 
Hobson's  choice  of  taking  the  adherents  of  one  or 
the  other  political  party,  both  equally  objectionable, 
for  non-partisan  offices.  A  club  of  citizens  of 
every  shade  of  political  opinion,  bound  together  by 
but  one  tie,  and  that  of  a  public-spirited  interest 
in  the  welfare  of  the  city  of  New  York,  had  in- 
vited all  the  interests  not  under  the  dominion  of 
Tammany  Hall  to  unite  in  the  formation  of  a 
ticket  which  was  to  be  expressive  of  the  best  senti- 
ments of  citizenship,  and  represent  in  its  make-up 
the  assurances  of  high  service  by  special  fitness  to 
fill  the  various  offices  for  which  they  were  selected. 
The  City  Club,  the  Citizens'  Union,  and  the  Re- 
publican Organisation,  which  had  at  this  time  truly 
subordinated  partisan  advantage  to  the  higher  call 
of  patriotism,  asked  the  citizens  of  New  York 
to  avail  themselves  of  the  opportunity  to  give 
Tammany  Hall  an  unmistakable  intimation  that 
New  York  was  weary  of  its  domination. 

As  viewed  by  the  great  body  of  voters,  the 
question  really  narrowed  itself  down  to  the  re- 
election of  Judge  Joseph  F.  Daly,  since  the  other 


ix  MUNICIPAL  REFORM  313 

reform  nominee  for  Justice  of  the  Supreme  Court 
— George  C.  Barrett — was  also  on  the  Tammany 
ticket,  and  the  other  judicial  nominations  were  not  of 
sufficient  prominence  greatly  to  excite  public  interest. 
In  the  words  of  Mr.  Sterne,  Judge  Daly  had  been 
denied  a  renomination  by  the  Boss  of  Tammany 
Hall,  on  the  avowed  ground  that  he  had  not  given 
proper  consideration  to  that  potentate,  meaning 
thereby,  to  his  financial  interest  and  political 
favourites.  In  the  language  of  the  organisation, 
Judge  Daly  had  been  "  turned  down  "  by  the  Boss 
because  he  refused  to  be  faithless  to  his  trust. 
Mr.  Sterne,  therefore,  appealed  to  the  citizens  of 
New  York,  if  they  respected  their  rights,  if  they 
had  any  decent  regard  for  the  value  of  an  inde- 
pendent judiciary,  if  they  knew  how  dangerous  it 
was  not  to  resent  this  displacing  by  a  political 
boss  of  a  faithful  judicial  officer,  to  put  Judge 
Daly  back,  by  their  votes  on  November  7,  where 
he  ought  to  have  been  a  year  ago.  Judge  Daly's 
candidature  represented  a  principle ;  it  repre- 
sented the  eternal  ideas  of  justice,  and  the  more 
one  respected  his  fellow- citizens  the  more  con- 
fidently would  he  expect  such  a  principle  to  triumph. 
But  the  time  was  not  ripe  for  the  popular 
uprising  that  swept  Tammany  out  of  power  in 
1901,  and  Mr.  Sterne  and  his  associates  in  the 
Citizens'  Union  movement  of  1899  pleaded  in 
vain.  Nevertheless,  up  to  the  date  when  the 
illness  which  was  destined  to  prove  fatal  overtook 
him,  Mr.  Sterne  did  not  cease  to  raise  his  voice 
and  bend  all  his  energies  to  the  promotion  of  the 
cause  of  good  government  in  the  city  of  New 


LIFE  OF  SIMON  STERNE      CHAP. 

York.  One  of  his  last  public  deliverances  on  this 
subject  was  a  speech  he  made  at  the  City  Club  on 
January  19,  1900,  on  the  revision  of  the  Charter 
of  the  Greater  New  York.  He  began  by  the 
reminder  that  this  charter  had  been  opposed  by 
every  conservative  interest  in  the  city.  It  was 
urged  that  it  would  increase  municipal  expendi- 
ture and  make  the  task  of  the  independent  voter 
who  desired  to  emancipate  municipal  government 
from  partisan  control  more  and  more  difficult. 
These  prognostications  came  to  pass.  The  ex- 
penses of  the  city  increased,  and  the  political 
organisation  which  had  formerly  controlled  the 
Government  was  aided  in  its  recapture  shortly 
after  the  passage  of  the  Charter.  The  question  of 
its  revision  was  before  the  community  once  more. 
Mr.  Sterne,  therefore,  embraced  the  opportunity 
to  plead  with  all  the  force  at  his  command  for  the 
one  safeguard  which  he  felt  would  most  effectually 
guarantee  to  the  minority  of  the  citizens  of  New 
York  some  proper  representation  in  the  Municipal 
Assembly,  and  under  which  it  would  be  expedient 
to  give  that  Assembly  substantial  power  over  the 
executive  department  of  the  city.  He  remained 
thoroughly  convinced  that  if  minority  representa- 
tion were  intelligently  introduced  in  the  election 
and  organisation  of  a  municipal  body,  the  cleavage 
would  no  longer  be  between  the  Democrats  of  the 
organisation  stripe  and  Republicans  of  the  organ- 
isation stripe,  but  political  parties  would  become 
disintegrated  on  the  subject  of  municipal  adminis- 
tration, and  the  citizens  would  divide  upon  muni- 
cipal questions  into  smaller  congeries,  leaving 


ix  MUNICIPAL  REFORM  315 

to  each  quota  of  voters  capable  of  electing  one 
member  to  such  municipal  body  a  special  organisa- 
tion and  domain. 

Mr.  Sterne  had  impressed  these  views  on  the 
Charter  Commission,  but  the  only  result  obtained 
was  the  recommendation  of  the  passage  of  a  con- 
stitutional amendment  applying  minority  repre- 
sentation to  municipal  bodies  after  the  passage  of 
the  Charter.  He  argued  that  we  have  tried  every 
conceivable  palliative  against  political  corruption, 
and  they  had  all  failed,  except  the  one  remedy 
which  promises  success,  which  is  drastic  in  its 
effect,  which  trusts  the  people  finally,  enlarges 
their  scope  of  choice,  and  gives  true  effect  to  their 
voting  power,  and  which  makes  of  a  legislative 
assembly  a  reduced  photograph  of  the  whole  com- 
munity. For  the  last  twenty-five  years  efforts  had 
been  made  by  civil  service  reform,  by  the  sub- 
stitution of  the  Australian  ballot,  and  by  putting 
nominations  under  the  aegis  of  the  law  and  pro- 
tecting the  citizen's  right  to  the  exercise  of  his 
nominating  power,  to  stay  corruption,  and  to 
undermine  the  rule  of  the  boss  ;  and  yet  the  rule 
of  the  boss  was  stronger  than  ever  before.  Why 
not,  asked  Mr.  Sterne,  try  what  some  of  the  most 
eminent  political  thinkers  believed  and  now  believe 
to  be  the  true  safeguard  for  Democratic  institutions 
and  the  only  preventive  of  the  degeneracy  of  the 
whole  political  machinery  and  its  falling  into  the 
hands  of  the  political  organiser  ?  It  is  the  law 
of  differentiation  in  employments,  and  the  in- 
tensity of  the  competition  of  modern  life  which 
create  and  make  as  a  condition  of  success  the 


316          LIFE  OF  SIMON  STERNE      CHAP. 

exclusiveness  of  thought  and  occupation  on  the 
one  side  of  the  mass  of  our  citizens  to  their 
respective  industrial  and  professional  vocations  ; 
and  on  the  other,  produce  a  class  of  politicians 
who  are  politicians  all  the  year  round,  and  who  are 
infinitely  the  superiors  in  management  to  the 
volunteer  and  occasional  politician.  A  contest 
between  the  two  represents  the  trained  intellect 
against  the  amateur,  and  it  produces  the  same 
result  in  politics  that  it  does  in  every  other 
occupation  in  life.  That  we  must,  therefore, 
make  it  easy  for  the  citizen  to  produce  a  result 
commensurate  with  his  efforts,  and  to  secure  a  re- 
presentative in  the  municipal  body  selected  to  act 
for  him  by  a  comparatively  slight  effort.  Impose 
on  the  citizen  the  condition  that  he  must  belong 
to  a  majority  before  he  can  be  represented  at  all, 
either  in  the  city  or  in  the  district,  and  you  place 
him  at  so  hopeless  a  disadvantage  as  against  the 
trained  politician,  that  he  prefers  to  go  a-fishing 
rather  than  attempt  the  impossible. 

Had  an  intelligent  appreciation  of  the  effect 
of  minority  representation  existed  in  the  minds  of 
the  authors  of  the  new  charter  and  the  Legislature 
which  passed  it,  and  had  provisions  securing  its 
benefits  been  incorporated  therein,  in  both  muni- 
cipal chambers  a  clear  majority  would  have  been 
elected  against  Tammany  in  1897  instead  of  an 
overwhelming  majority  in  its  favour.  In  a  repre- 
sentative body  elected  on  the  system  of  minority 
or  proportional  representation  every  influential 
class  of  our  citizens  would  find  itself  represented 
by  its  ablest  spokesmen.  The  taxpayers,  as  such, 


ix  MUNICIPAL  REFORM  317 

would  then  be  represented  ;  the  merchants  would 
be  represented ;  every  form  of  communal  interest 
in  the  city  of  New  York  which  could  attach  to  its 
banner  a  one-hundredth  part  of  its  voting  popula- 
tion would  be  represented,  and  the  Municipal 
Assembly  would,  indeed,  be  a  reduced  photograph 
of  all  the  financial,  industrial,  educational,  and 
other  interests  in  the  city.  We  have,  said  Mr. 
Sterne,  tried  two  municipal  bodies,  and  they  were 
as  corrupt  as  one.  We  ;  have  tried  short  terms 
for  mayors,  and  their  incumbents  were  as  incapable 
as  those  holding  longer  terms.  We  have  tried 
everything  but  the  true  remedy.  So  Mr.  Sterne 
was  moved  to  make  this  last  appeal  for  a  reform 
in  whose  adoption  he  profoundly  believed  lay  the 
solution  of  most  of  the  problems  with  which  the 
people  of  New  York  had  been  vainly  trying  for 
generations  to  deal  : — 

Is  it  not  about  time  for  a  community  which  has 
intelligence  enough  to  vie  with  every  other  part  of  the 
world  in  commercial  and  manufacturing  activity,  to  see 
the  hopelessness  of  every  attempt  heretofore  made  to 
remedy  the  political  evils  which  afflicted,  and  accept  the 
just  and  larger  remedial  measure  of  a  fuller  effectiveness 
of  the  vote,  and  of  a  larger  and  freer  expression  of  public 
opinion  which  is  alone  afforded  by  minority  representation? 


CHAPTER   X 

PROFESSIONAL    ACTIVITY 

MR.  STERNE  had  the  common  experience  of 
members  of  the  Bar  who  begin  their  career  without 
influential  connections,  of  finding  it  difficult  to 
obtain  a  firm  foothold  in  his  profession.  But  his 
indomitable  will  and  tireless  energy,  coupled  with 
a  training  more  than  usually  thorough,  an  engaging 
manner  and  unswerving  uprightness  of  conduct, 
combined  to  gain  for  him  clients  whose  lasting 
respect  he  seldom  failed  to  win,  no  less  than  that 
of  the  men  with  whom  he  was  brought  into  con- 
tact on  the  Bench  or  at  the  Bar.  Mr.  Sterne 
entered  into  co-partnership  in  1867  with  Mr.  Max 
Goepp,  under  the  firm  of  Goepp  and  Sterne.  His 
partner  dying  in  1872,  he  continued  in  practice 
alone  until  1878.  During  the  seven  succeeding 
years,  Mr.  Sterne  formed  partnerships  with  Mr. 
James  A.  Hudson,  Mr.  Oscar  S.  Straus,  and  Mr. 
Daniel  G.  Thompson,  resuming  practice  alone  in 
1885,  and  continuing  it,  under  his  own  name,  until 
his  death  in  1901. 

It  is  obviously  impossible  to  make  more  than 
a  passing  reference  to  the  professional  work  per- 

318 


CH.  x      PROFESSIONAL  ACTIVITY         319 

formed  by  a  man  like  Mr.  Sterne  during  a  long 
and  active  practice  at  the  Bar.  Among  the  clients 
whom  he  represented  early  in  his  career  were 
certain  security-holders  interested  in  the  manage- 
ment of  the  Chesapeake  and  Ohio  Railroad  Com- 
pany ;  The  Central  Crosstown  Railway  Company, 
for  which  he  acted  as  counsel  from  1874  to  1880, 
when  it  was  one  of  the  prominent  street  railroads 
of  New  York  ;  Mark  Twain,  the  well-known 
humorist,  in  a  suit  to  prevent  infringement  of 
copyright  ;  Joaquin  Miller,  the  poet  of  the  Sierras, 
in  a  like  suit  ;  and  Sir  Morrell  Mackenzie,  the 
well-known  English  physician.  Mr.  Sterne  early 
showed  his  ability  to  handle  satisfactorily  matters 
involving  large  financial  transactions,  and  in  this 
class  of  cases  he  was  very  frequently  consulted. 
He  was  a  good  equity  lawyer,  and  was  noted  for 
his  familiarity  with  and  sound  knowledge  of  cor- 
poration and  railroad  law.  He  was  frequently 
called  upon  for  an  opinion  relating  to  questions 
involving  the  construction  of  the  Constitution 
of  the  United  States,  the  Constitution  of  the 
State  of  New  York,  and  the  Interstate  Commerce 
Act.  The  prominent  position  which  Mr.  Sterne 
secured  at  the  Bar,  and  the  reputation  which  he 
gained  for  learning  in  the  higher  branches  of  the 
law,  are  indicated  by  his  appearance  in  certain  ex- 
tradition proceedings  brought  in  the  name  of  the 
Austrian  Government  ;  in  cases  before  the  United 
States  Supreme  Court  on  questions  affecting  the 
validity  of  the  issues  of  bonds  of  the  States  of 
Louisiana  and  North  Carolina,  payment  of  which 
had  been  repudiated  ;  in  a  suit  involving  the 


320          LIFE  OF  SIMON  STERNE      CHAP. 

question  of  the  right  of  the  city  of  New  York  to 
apply  the  bonds  in  its  sinking  fund  toward  the 
extinction  of  its  debt ;  in  a  proceeding  in  relation 
of  the  right  of  the  city  of  New  York  to  expend 
money  for  the  opening  of  Van  Courtlandt  and 
Crotona  Parks  after  the  debt  limit  had  apparently 
been  reached  ;  in  a  matter  before  the  Executive 
Department  of  the  United  States  involving  the 
retention,  against  the  interests  of  American 
citizens,  of  a  certain  diplomatic  representative  in 
one  of  the  States  of  Africa  ;  in  proceedings  before 
the  Department  of  the  Interior  in  relation  to  public 
lands,  and  others  in  relation  to  certain  old  Spanish 
grants  affecting  title  to  a  large  tract  of  land  in  the 
territory  of  New  Mexico  ;  in  a  hearing  before  the 
Secretary  of  State,  as  representing  the  President, 
in  regard  to  signing  a  bill  which  indirectly  brought 
about  a  change  in  the  position  of  the  United  States 
Government  toward  the  Nicaragua  Canal  question  ; 
in  the  submission  of  an  argument  to  the  President 
of  the  United  States  in  regard  to  his  signature  of 
a  bill  prohibiting  the  acquisition  by  alien  corpora- 
tions of  more  than  a  specified  amount  of  land  in 
the  territories  of  the  United  States  ;  in  proceedings 
before  the  Court  of  Claims  of  the  State  of  New 
York  with  reference  to  the  construction  of  an 
addition  to  the  new  Capitol  building  at  Albany  ; 
in  quo  war  ran  to  proceedings  as  to  the  right  of 
certain  railroads  in  Brooklyn  to  use  steam  on  the 
streets  of  that  city  ;  in  patent  infringement  suits 
affecting,  among  others,  an  important  chemical 
preparation  largely  employed  in  the  industrial  arts, 
a  well-known  air  brake  used  on  railways,  and  the 


x  PROFESSIONAL  ACTIVITY        321 

question  of  the  priority  of  invention  of  a  weapon 
used  in  modern  warfare  ;  in  a  suit  determining 
almost  for  the  first  time  that  a  seat  on  the  New 
York  Cotton  Exchange  was  property  subject  to  sale 
under  a  judgment  against  a  member,  and  in  another 
suit,  also  pioneer  in  its  nature,  decided  in  his  favour 
by  the  New  York  Court  of  Appeals,  determining 
that  the  interest  of  a  stockholder  in  a  foreign 
corporation  is  not  subject  to  attachment  in  any 
State  other  than  that  in  which  the  corporation  was 
organised. 

Mr.  Sterne's  familiarity  with  Wall  Street  affairs, 
and  the  convictions  he  had  formed  as  to  the 
evils  of  speculation,  led  him,  as  one  of  several 
contributors  to  a  series  of  newspaper  articles  by 
prominent  lawyers  on  the  subject  of  success  at  the 
Bar,  which  appeared  in  New  York  in  1883,  to 
point  out  that  one  of  the  causes  of  failure  among 
lawyers  was  the  temptation,  too  often  indulged,  to 
take  a  speculative  interest  in  the  enterprises  of 
their  clients.  By  endeavouring  to  seize  the  oppor- 
tunity of  acquiring  wealth  without  much  effort, 
Mr.  Sterne  held  that  the  attention  of  the  lawyer 
became  diverted  from  his  more  immediate  respon- 
sibilities ;  his  money  being  invested  in  an  uncertain 
risk,  his  time  was  often  wasted  and  the  gains  of 
many  years  swept  away,  with  the  sure  result  of 
professional  demoralisation  and  loss  of  clients. 

Mr.  Sterne's  appearance,  in  1879  anc^  1880,  as 
counsel  for  the  New  York  Chamber  of  Commerce 
and  New  York  Board  of  Trade  and  Transportation 
before  the  Committee  of  the  State  Assembly,  known 
as  the  Hepburn  Railroad  Investigation  Committee, 

Y 


322          LIFE  OF  SIMON  STERNE       CHAP. 

and  his  arduous  and  successful  services  in  that 
investigation,  have  already  been  referred  to  in  an 
earlier  chapter.  He  spent  nearly  eight  months  in 
this  work,  and  employed  all  the  resources  of  his 
professional  knowledge  and  ability,  no  less  than  his 
insight  into  human  nature,  in  dealing  with  un- 
willing witnesses.  The  efforts  of  opposing  counsel 
to  introduce  unseemly  wrangling  and  to  belittle 
his  labours  on  behalf  of  the  mercantile  community, 
were  met  with  the  greatest  urbanity  and  firmness. 
His  manner  of  examining  the  leading  railroad 
officers  who  appeared  before  the  Committee  was 
such  as  to  command  respect  and  admiration.  He 
declared  that  he  was  not  attacking  the  men  but  the 
system  they  represented.  This  formed  the  key- 
note of  his  conduct  of  the  investigation,  and  by 
closely  adhering  to  it  he  succeeded  in  exposing 
the  evils  then  connected  with  the  administration 
of  New  York's  great  systems  of  transportation, 
despite  the  denials  of  the  railroad  Presidents  that 
any  such  evils  existed.  The  testimony  taken  is 
contained  in  five  bulky  volumes  of  printed  matter 
which  stand,  to  this  day,  as  a  monument  to  the 
industry  and  acumen  of  the  man  who  elicited  it, 
and  as  a  contribution  whose  value  has  never  been 
excelled,  to  this  branch  of  railroad  literature. 

In  his  closing  argument  before  the  Committee, 
Mr.  Sterne  took  occasion  to  reply  to  a  remark  of 
one  of  the  opposing  counsel  who  had  referred 
slightingly  to  his  work.  He  pointed  out  that  the 
legal  representatives  of  the  railroad  companies  in 
their  summing  up,  which  occupied  several  days, 
had  ignored  all  the  evidence  presented  and  had 


x  PROFESSIONAL  ACTIVITY         323 

treated  the  controversy  as  though  no  proof  had 
been  adduced  to  support  the  allegations  of  the 
complaining  merchants,  in  spite  of  the  fact  that  the 
truth  of  these  charges  had  been  overwhelmingly 
established.  To  an  allusion  which  one  of  them, 
Mr.  Depew,  had  made  to  him  as  a  Don  Quixote, 
he  replied  in  the  following  terms  : — 

I  have  been  called  by  my  friend,  Mr.  Depew,  in 
several  parts  of  his  address  a  "  Don  Quixote."  I  did  not 
know  to  what  degree  or  extent  that  remark  was  apposite 
or  pertinent  until  towards  the  end  of  this  third  day  of 
discussion.  I  am  now  disposed  to  confess  that  there  is 
something  Don  Quixotic  about  this  controversy  as  it  now 
shapes  itself.  If  1  am  a  Don  Quixote,  this  Committee 
had  the  exhibition  that  instead  of  Don  Quixote  fighting 
the  windmill,  two  windmills  have,  during  the  last  three 
days,  been  fighting  Don  Quixote  ! 

Reference  has  already  been  made,  in  a  previous 
chapter,  to  Mr.  Sterne's  legal  services  on  behalf 
of  the  city,  in  1874,  in  connection  with  the  sink- 
ing of  the  tracks  of  the  New  York  and  Harlem 
Railroad  on  Fourth  Avenue,  above  Forty-Second 
Street,  in  New  York  City.  He  was  unable  to 
obtain  a  final  determination  of  this  case  on  appeal, 
on  account  of  the  death  of  Mayor  Havemeyer, 
for  whom  he  was  acting  as  private  counsel,  and 
the  decision  of  the  then  Corporation  Counsel  to 
discontinue  further  proceedings  after  the  decision 
of  the  lower  Court.  In  Mr.  Sterne's  opinion 
there  was  no  valid,  legal,  or  other  reason  for 
such  a  discontinuance,  but  as  he  was  acting 
merely  as  the  representative  of  the  official  at- 
torney of  the  city,  he  was  helpless  in  the  matter. 


324          LIFE  OF  SIMON  STERNE       CHAP. 

He  always  felt  confident  that  if  he  had  been 
allowed  to  argue  this  case  on  appeal,  he  would 
have  carried  his  point,  and  saved  a  large  sum  of 
money  for  the  city. 

As  counsel  for  the  city  of  New  York  in 
several  suits  brought  against  certain  local  banks 
to  recover  interest  on  money  deposited  during 
the  Tweed  regime,  and  which  the  banks  claimed 
had  been  deposited  without  any  agreement  for  the 
payment  of  interest,  Mr.  Sterne  achieved  at  least 
the  partial  success  of  recovering  for  the  city  the 
sum  of  over  $200,000. 

Suits  against  the  New  York  Elevated  Railroad 
for  damages  to  property  by  reason  of  the  obstruc- 
tion which  they  made  to  the  passage  of  light  and 
air  have  long  ceased  to  excite  attention  in  New 
York,  or  to  be  regarded  as  anything  remarkable 
in  legal  practice.  But  in  the  earlier  history  of  the 
elevated  roads,  the  questions  involved  were  re- 
garded as  of  the  highest  importance,  and  the 
absence  of  any  controlling  precedents  gave  a 
profound  legal  significance  to  their  determination. 
In  the  earliest  period  of  these  suits,  Mr.  Sterne 
was  retained  on  behalf  of  a  certain  corporation 
to  recover  damages  claimed  by  reason  of  the 
operation  of  one  of  the  west  side  elevated  railroads 
in  front  of  its  building  which  was  situated  oppo- 
site one  of  the  stations  of  the  road.  Mr.  Sterne's 
client  occupied  the  entire  building,  and  derived 
no  rental  from  it.  But  it  was  deemed  necessary 
to  prove  loss  of  rental  as  one  of  the  elements  of 
damage.  The  loss  of  light  due  to  the  darkening 
of  the  building  by  the  station  in  front  of  it  had 


x  PROFESSIONAL  ACTIVITY         325 

been  somewhat  lessened  by  the  construction  of  a 
large  skylight,  and  it  seemed  as  if  the  amount 
recoverable  on  that  ground  would  be  trifling.  It 
was  also  necessary  to  prove  depreciation  of  the 
property.  This  would  not  have  been  difficult  but 
for  the  fact  that  during  most  of  the  period  for 
which  damages  were  claimed,  there  had  been  a 
steady  rise  in  real  estate  values  in  many  parts  of 
the  city,  including  the  district  in  which  the 
plaintiff's  property  was  situated.  Mr.  Sterne 
claimed  that  this  was  due  to  a  reaction  from  the 
pre-existing  depression,  and  not,  as  was  claimed 
by  the  defendant,  to  any  benefit  gained  by  the 
existence  of  the  elevated  railroad.  This  situation, 
however,  added  greatly  to  the  difficulty  of  Mr. 
Sterne's  position,  and  it  was  regarded  as  a  decided 
legal  triumph  when,  through  the  testimony  of 
expert  real  estate  agents,  and  by  a  process  of 
exhaustive  reasoning  on  the  facts  presented,  he 
overcame  all  the  objections  urged  against  the 
recovery  of  damages,  and  succeeded  in  obtaining 
a  judgment  for  the  full  amount  claimed.  This 
decision  was  sustained  on  appeal,  and  the  Company 
decided  to  pay  the  judgment  before  the  time  set 
for  argument  in  the  Court  of  last  resort,  fearing 
the  effect  of  an  adverse  decision  there  upon  the 
suits  of  other  claimants. 

Another  case  of  considerable  public  interest 
occurred  in  the  course  of  Mr.  Sterne's  practice  in 
the  early  eighties.  He  was  called  upon  by  the 
Board  of  Trade  and  Transportation  to  appear  on 
its  behalf  against  certain  railroads  which  were 
refusing  to  accept  freight  for  shipment  on  account 


326          LIFE  OF  SIMON  STERNE      CHAP. 

of  what  was  then  known  as  the  "  Freight-handlers' 
Strike  "  for  higher  wages.  The  case  was  argued 
by  Mr.  Sterne  at  the  Special  and  General  term  of 
the  Supreme  Court,  and  resulted  in  a  decision  by 
the  latter  tribunal  in  favour  of  Mr.  Sterne's 
position,  which  was,  that  railroads,  though  in 
private  hands,  are  affected  by  a  public  interest  ; 
that  the  business  done  upon  them  is  likewise 
affected  by  a  public  interest,  and  that  it  is  the 
public  duty  of  the  railway  corporation  to  handle 
and  forward  freight  offered  to  it,  the  disaffec- 
tion of  its  working-men  furnishing  no  excuse  for 
the  non-performance  of  that  duty.  This  decision 
(in  People  v.  New  Tork  Central  and  Hudson 
River  R.  R.  Company,  28  Hun.)  has  been  fre- 
quently referred  to  in  similar  strikes  in  other 
states,  and  was  among  the  first  of  its  kind 
rendered  in  the  state  of  New  York.  It  has  com- 
manded acceptance  by  the  Courts  of  other  states 
wherever  a  similar  question  has  been  raised. 

But,  as  Mr.  Sterne  himself  argued,  in  discussing 
the  question  of  "  The  Duties  of  Railroads  and 
their  Employes "  with  Prof.  Hadley  before  the 
Commonwealth  Club  in  March,  1888  :  —  It  is 
equally  true  that  not  only  the  railway  performs  a 
public  function,  which  it  may  not  neglect  or  dis- 
continue, but  that  as  a  necessary  legal  and  logical 
corollary,  its  officers,  employes,  and  working-men 
are  likewise  engaged  in  the  performance  of  a 
public  function  which  they  cannot  be  permitted 
to  discontinue  at  will.  More  specifically,  these 
employes  cannot  be  permitted  to  combine  to  dis- 
continue this  public  service,  however  humble  may 


x  PROFESSIONAL  ACTIVITY         327 

be  their  part  of  the  functions  performed,  inasmuch 
as  the  occupation  partakes  of  a  public  character, 
and  the  employe  should  be  held  in  the  same 
measure  of  responsibility  to  the  public  as  his 
employer.  Mr.  Sterne  went  on  to  argue  that  if 
the  law  as  it  stands  does  not  sufficiently  recognise 
this  duty  on  the  part  of  employes,  there  should  be 
no  hesitation  about  adopting  amendments  to  the 
law  by  which  the  acceptance  of  employment  for 
the  performance  of  a  function  which  is  so  essential 
to  the  public  weal  as  the  regular  transportation 
of  passengers,  freight,  and  mails,  should  be  regarded 
as  an  enlistment  for  a  term  of  years  in  the  public 
service.  Manifestly,  under  any  such  rule,  a  rail- 
way engineer  would  no  more  be  permitted,  at  the 
instigation  of  the  chief  of  his  trade-union,  to  take 
his  engine  to  the  round-house,  than  a  soldier 
would  be  to  lay  down  his  arms  without  a 
command  from  his  superior  officer.  Mr.  Sterne 
scouted  the  idea  that  such  legislation  would  lead 
to  paternal  government,  though  he  admitted  that 
so  long  as  private  interests  could  be  relied  upon 
to  perform  this  transportation  function  duly  and 
thoroughly,  it  was  as  well  to  leave  things  as  they 
stood.  But  when  the  community  is  in  danger  of 
the  stoppage  of  a  service  upon  which  its  welfare 
depends,  the  community  has  the  right  to  step  in 
and  to  attach  such  conditions  to  the  service  as  will 
insure  its  performance  and  its  continuance,  pre- 
cisely for  the  same  reason  that  it  insures  the 
regularity  and  continuance  of  the  service  of  its 
armies  and  of  its  navies,  by  terms  of  service 
made  independent  of  caprice  and  conspiracy. 


328          LIFE  OF  SIMON  STERNE       CHAP. 

There  have  been  many  acute  reminders  since 
these  words  were  uttered  of  the  necessity  of  in- 
corporating in  the  law  of  the  land  the  principles 
here  contended  for,  but  they  have  so  far  passed 
unheeded. 

That  Mr.  Sterne's  fairness  to  his  opponents  was 
fully  appreciated  in  his  profession,  is  shown  by 
an  incident  which  occurred  a  few  years  before  his 
death.  On  behalf  of  certain  foreign  bond-holders 
largely  interested  in  the  Chicago  and  Northern 
Pacific  Railroad  Company,  he  had  become  a 
member  of  the  committee,  of  which  he  was  also 
one  of  the  counsel,  engaged  in  the  effort  to  bring 
about  a  reorganisation  of  the  affairs  of  that  com- 
pany, then  in  the  hands  of  a  receiver.  Many 
claims,  conflicting  as  against  each  other,  of  dif- 
ferent classes  of  lienors,  general  creditors,  and 
stockholders  had  to  be  dealt  with,  and  each 
counsel  or  representative  of  the  various  claimants 
was  engaged  in  the  endeavour  to  obtain  as  large 
a  concession  as  possible  for  his  client.  The  compli- 
cated relations  of  the  Corporation  with  the  Northern 
Pacific  Railroad  Company,  then  also  in  the  hands 
of  receivers,  were  matters  of  frequent  discussion 
and  serious  consideration  on  the  part  of  the 
committee  and  their  counsel,  and  Mr.  Francis  L. 
Stetson,  counsel  for  Messrs.  J.  P.  Morgan  and 
Company,  who  were  largely  interested  in  the 
Northern  Pacific  Company,  and  who  were,  like 
the  other  claimants,  endeavouring  to  secure  the 
best  results  for  themselves.  Toward  the  later 
stages  of  the  reorganisation  proceeding,  a  dispute 
arose  as  to  the  claims  of  one  of  the  parties  inter- 


x  PROFESSIONAL  ACTIVITY         329 

ested,  the  decision  of  which  was  of  vital  importance 
to  all  concerned.  After  much  talk,  there  seemed 
to  be  no  prospect  of  coming  to  an  agreement. 
Mr.  Stetson,  though  opposed  to  Mr.  Sterne  and 
other  members  of  the  committee  on  the  question 
involved,  finally  suggested  that  in  view  of  the 
judicial  spirit  which  Mr.  Sterne  had  shown  in 
dealing  with  the  problems  considered  by  the 
committee,  he  felt  sure,  if  the  matter  in  contro- 
versy were  submitted  to  Mr.  Sterne,  it  would  be 
decided  on  its  merits,  and  full  justice  done  to  all. 
He  added  that,  so  far  as  his  own  clients  were  con- 
cerned, he  was  willing,  on  their  behalf,  to  make 
the  submission.  In  this  suggestion  Mr.  Stetson 
was  warmly  seconded  by  others  interested  in  the 
controversy.  Though  at  first  reluctant  to  con- 
sent, Mr.  Sterne  was  finally  induced  to  serve  as 
arbitrator,  and  when  his  decision  was  rendered,  it 
was  accepted  as  eminently  satisfactory. 

Nothing  is  more  gratifying  to  a  lawyer  than  to 
have  his  judgment  of  the  law  vindicated  by  a 
decision  of  the  Court,  when  associate  counsel  have 
disagreed  with  him  and  taken  the  view  of  his 
opponents.  Mr.  Sterne  had  this  satisfaction  in  a 
series  of  litigations  in  which  half  a  dozen  promi- 
nent attorneys  were  associated  with  him,  and  the 
other  side  was  represented  by  counsel  of  equal 
eminence.  The  question  arose  under  the  terms 
of  a  railroad  mortgage  which  was  being  fore- 
closed, whether  the  complainants  were  entitled  to 
the  payment  of  interest  upon  the  defaulted  coupons. 
The  mortgage  itself  was  silent  on  this  point. 
All  the  attorneys,  except  Mr.  Sterne,  insisted  that 


330          LIFE  OF  SIMON  STERNE       CHAP. 

each  coupon  constituted  a  separate  contract,  and 
that,  as  there  had  been  a  default  on  each  coupon, 
interest  thereon  ran  from  the  time  that  each 
became  due.  Without  having  the  opportunity 
of  examining  the  authorities,  Mr.  Sterne  insisted 
that,  from  the  nature  of  the  mortgage  contract 
and  the  provisions  of  the  law  of  New  York,  where 
the  mortgage  had  been  executed  and  the  bonds 
and  coupons  were  payable,  interest  as  claimed  was 
not  recoverable.  His  position  was  that  the 
mortgage  was  similar  in  its  nature  to  a  real  estate 
mortgage,  upon  which,  on  default  of  the  payment 
of  the  bond,  simple  interest  only  could  be  re- 
covered, unless,  of  course,  as  was  not  here  the 
case,  the  mortgage  provided  otherwise.  He 
argued  the  question  before  one  of  the  judges 
of  the  United  States  Circuit  Court,  in  one  of  the 
Western  Districts,  who,  after  an  examination  of 
the  authorities,  submitted  by  Mr.  Sterne  in  an 
elaborate  brief,  agreed  with  his  conclusions,  and 
by  so  doing  enabled  Mr.  Sterne  to  save  for  his 
clients  nearly  $150,000.  The  attorneys  on  the 
other  side  became  so  fully  convinced  of  the  justice 
of  Mr.  Sterne's  argument,  that  they  decided  not  to 
appeal  from  the  Judge's  order. 

Mr.  Sterne  was  full  of  resource  in  his  mastery 
of  the  practical  details  of  his  profession,  and  was 
equally  conscientious  and  industrious  in  the  effort 
to  accomplish,  by  every  honourable  means,  the 
object  of  his  retainer.  He  uniformly  gave  the 
impression  of  thorough  earnestness  and  unwavering 
belief  in  the  justice  of  his  client's  cause.  He  was 
gifted  with  an  extraordinary  memory,  which  enabled 


x  PROFESSIONAL  ACTIVITY         331 

him  to  recall,  without  apparent  effort,  and  with 
great  accuracy,  all  the  facts  bearing  on  a  given 
matter,  and  the  arguments  on  both  sides  of  a 
question  which  had  at  any  time  been  presented  to 
him.  He  was  accustomed  to  say,  when  wonder 
was  expressed  at  his  ability  to  recall,  after  a  long 
lapse  of  time,  and  in  the  midst  of  the  pressure  of 
other  matters,  some  incident,  fact,  or  argument,  in 
connection  with  the  subject  under  discussion,  that 
he  saw  things  with  an  almost  microscopic  eye,  and 
retained  them  unconsciously  in  his  memory  as 
clearly  as  he  had  at  first  received  them. 

The  cases  in  which  Mr.  Sterne's  professional 
activity  dealt  with  questions  of  public  interest 
would  make  a  long  list,  and  some  of  them  have 
already  been  referred  to,  at  length,  in  the  earlier 
chapters  of  this  volume.  One  of  the  latest  of 
these  related  to  what  is  known  as  the  "Amsterdam 
Avenue  grab."  One  of  the  street  railroad  com- 
panies of  New  York  had  attempted  to  occupy 
that  section  of  Amsterdam  Avenue  between  Fifty- 
Ninth  and  One  Hundred  and  Twenty-Fifth  Street, 
for  the  purpose  of  laying  tracks  for  cars  to  be 
run  by  electricity,  although  another  company  was 
already  in  possession,  and  the  available  width  of 
the  avenue  precluded  the  possibility  of  safe  opera- 
tion over  two  sets  of  double  tracks.  The  inter- 
vening space  which  it  was  proposed  to  allow 
between  the  two  sets  of  tracks  of  the  two 
companies  was  so  small  as  to  involve  a  certainty 
that  any  one  caught  between  the  cars  while  in 
operation  would  be  injured  or  killed.  The  danger 
of  accident  was  so  apparent,  and  the  fear  of  injury 


332          LIFE  OF  SIMON  STERNE       CHAP. 

to  women  and  children  using  the  street  was  so 
great,  that  there  was  a  general  public  protest 
against  the  proposed  further  occupation  of  the 
Avenue.  Mr.  Sterne  was  retained  as  counsel  to 
protect  the  rights  of  the  people,  and  succeeded  in 
obtaining  an  injunction  from  the  Courts  restraining 
the  invading  company  from  carrying  out  its  plans. 
To  this  he  added  his  services  in  drafting  a  Bill 
which  was  enacted  into  a  law,  by  which  similar 
attempts  by  railroad  companies  likely  to  endanger 
the  lives  of  the  public  were  prohibited. 

For  many  years  Mr.  Sterne  had  appeared, 
without  fee  or  reward,  before  the  Legislature  at 
Albany,  in  support  of  a  Bill  which  he  had  drafted 
to  regulate  telephone  charges.  In  common  with 
many  others,  he  thought  these  charges  extortionate, 
but,  owing  to  the  influence  and  power  of  the 
telephone  monopoly,  he  had  been  unable  to  make 
much  progress  in  his  efforts  to  have  them  reduced. 
When,  therefore,  a  few  years  before  his  death,  the 
Telephone  Company  increased  its  rate  for  unlimited 
service,  Mr.  Sterne's  objections  took  the  determined 
form  of  obtaining  a  preliminary  injunction  to  pre- 
vent the  removal  of  his  telephone,  because  of  his 
refusal  to  accede  to  the  demands  of  the  Company. 
He  insisted  that  the  additional  charge  was  unreason- 
able, and  that  the  books  of  the  corporation  would 
sustain  his  contention.  The  Company  fought  the 
suit  in  every  way,  and,  on  a  technicality,  evaded 
an  examination  before  trial.  The  Court,  however, 
continued  the  injunction,  holding,  practically  for 
the  first  time  as  a  matter  of  law,  that  the  service 
rendered  by  the  Telephone  Company  was  analogous 


x  PROFESSIONAL  ACTIVITY         333 

to  that  rendered  by  a  common  carrier  ;  that  the 
public  was  entitled  to  it  on  the  payment  of  a 
reasonable  price,  and  that  what  was  a  reasonable 
price  should  be  determined  by  a  trial  upon  the 
merits.  This  trial,  however,  in  which  the  ex- 
amination desired  would  have  been  made,  had  not 
taken  place  at  the  time  of  Mr.  Sterne's  death,  and 
there  appeared  to  be  no  necessity  for  a  determina- 
tion of  the  question  by  his  heirs.  The  suit  was 
productive  of  benefit  to  the  public,  inasmuch  as  the 
decision  on  the  motion  for  an  injunction  served  to 
call  attention  to  the  rights  of  telephone  users,  and 
is  said  to  have  induced  the  Telephone  Company  to 
arrange  for  a  system  of  reduced  charges  based  upon 
the  number  of  telephone  calls  issued. 

Mr.  Sterne  was,  from  its  foundation,  a  member 
of  the  Association  of  the  Bar  of  the  City  of  New 
York,  the  leading  organisation  of  lawyers  in  the 
United  States.  When  the  power  of  the  Tweed 
Ring  began  to  exert  its  influence  on  the  Bench  and 
Bar  of  the  city,  he  was  among  the  first  to  suggest 
the  organisation  of  a  body  of  lawyers,  for  the 
purpose  of  maintaining  the  honour  and  dignity  of 
the  profession,  and  raising  the  standard  of  its 
culture  and  ability.  His  name  does  not  appear 
among  the  founders  of  the  Bar  Association, 
because,  when  it  was  organised,  he  was,  under  the 
advice  of  his  physician,  travelling  in  South  America. 
On  his  return  to  New  York,  he  immediately  be- 
came a  member,  and  continued  to  be  one  until 
his  death.  He  took  an  active  part  in  the  affairs 
of  the  Association,  serving  at  frequent  intervals  on 
its  more  prominent  committees,  and  being  con- 


334          LIFE  OF  SIMON  STERNE      CHAP. 

suited   on  all  important  occasions  by  his  fellow- 
members. 

The  contrast  between  the  compensation  paid 
by  the  English  Government  to  its  judges,  and  that 
paid  by  the  Government  of  the  United  States,  was 
a  subject  to  which  Mr.  Sterne  frequently  referred, 
both  by  tongue  and  pen.  He  made  a  notable 
contribution  to  this  discussion  in  an  article  con- 
tributed to  the  January,  1892,  number  of  The 
Counsellor,  a  magazine  devoted  to  the  interests  of 
the  New  York  Law  School.  The  article  was  entitled 
"  The  Salaries  of  the  United  States  Supreme  Court 
Judges,"  and  in  it  Mr.  Sterne  brought  out  a  number 
of  considerations  which  seem  at  length  about  to  bear 
fruit  in  long-deferred  Congressional  action  on  this 
subject.  In  illustration  of  his  theme,  he  referred 
in  the  following  language  to  the  impression  pro- 
duced on  him  when  as  a  boy  he  had  gone  with  his 
law  preceptor,  Mr.  John  H.  Markland,  to  call 
upon  Chief  Justice  Taney  in  Washington : — 

We  found  that  legal  luminary  living  with  his  family 
over  a  candy  shop  on  Pennsylvania  Avenue,  between 
Fourth  and  Fifth  Streets.  The  chamber  in  which  the 
Chief  Justice  wrote  his  opinions  was  partitioned  off  by  a 
calico  curtain  from  another  apartment  in  which  apparently 
was  done  the  family  cooking.  Of  course  there  was  an 
impressiveness  and  an  air  of  refinement  which  emanated 
from  the  dignity  of  his  person  and  which  no  mean  sur- 
roundings could  overcome,  and  there  was  also  the  stamp 
of  superiority  given  by  the  law  books  which  filled  the 
pine-wood  shelves.  But  more  forcibly  there  was  indelibly 
engraved  upon  the  mind  of  the  young  lad  the  conviction 
of  the  penuriousness  of  the  country  which  demanded  of 
the  leading  law-officer  of  the  State  a  life-long  devotion, 


x  PROFESSIONAL  ACTIVITY         335 

and  exacted  from  him  an  unsullied  and  unblemished 
integrity,  together  with  entire  abstention  from  any 
speculations  to  advance  his  worldly  concerns  (for  such 
speculations  would  in  themselves  involve  a  suspicion  of 
bias  as  to  the  vast  and  varied  interests  coming  before  the 
Court),  while  it  at  the  same  time  lodged  that  self-same 
officer  in  what  was  little  better  than  a  garret,  and  left 
him  cause  for  anxiety  even  for  the  mere  subsistence  of 
his  family  after  his  death. 

Mr.  Sterne  instanced  the  cases  of  the  late  United 
States  Supreme  Court  Chief  Justice  Waite  and 
Associate  Justice  Samuel  F.  Miller,  on  behalf 
of  whose  family  contributions  were  solicited,  after 
their  death,  from  members  of  the  Bar.  After 
dwelling  upon  various  unsatisfactory  conditions 
existing  with  reference  to  the  Court,  he  added  : — 

That  in  active  competition  for  talent  of  a  high  order 
the  United  States  is  constantly  outbid  in  the  markets,  and 
cannot,  therefore,  in  the  long  run  pay  to  have  in  its 
judicial  service  the  measure  of  ability  that  is  generously 
contended  for  by  railway  corporations,  banking  establish- 
ments, and  private  institutions  of  every  character,  would 
seem  from  what  I  have  said  too  obvious  for  comment, 
were  it  not  for  the  fact  that,  notwithstanding  the  shabbi- 
ness  of  the  Governmental  bid,  ability  of  a  very  high  order 
has  from  patriotic  motives  been  forthcoming,  and  its 
services  offered  to  the  people  of  the  United  States.  If 
this  system  continues  successfully  in  operation,  it  is  a 
mere  exploiting  speculation  by  a  vast  nation  to  deplete 
and  cheat  a  few  people  of  their  brain  products  for  its  own 
benefit  and  without  a  single  justifiable  excuse,  either  of 
expediency  or  honesty. 

At  the  time  of  his  death,  Mr.  Sterne  was  the 
General  Counsel  of  the  Missouri,  Kansas,  and 
Texas  Railway  Company.  He  had  been  retained 


336          LIFE  OF  SIMON  STERNE       CHAP. 

in  1888  by  certain  foreign  clients  to  protect  their 
large  stock-holding  interests  in  that  corporation 
as  against  the  machinations  of  those  controlling 
it.  The  road  was  operated  under  a  lease  by 
the  Missouri  Pacific  Railway  Company,  and  its 
revenues  had  been  so  depleted  through  bad 
management  and  diversion  of  traffic,  that  a  default 
occurred  on  the  payment  of  interest  on  its  bonds. 
Foreclosure  proceedings  were  instituted  by  the 
trustees  of  various  mortgages  on  the  road,  and 
receivers  appointed,  and  those  previously  in  con- 
trol or  interested  with  them  expected,  as  was 
believed,  to  be  able  to  buy  in  the  property  at  a 
nominal  figure.  This  expectation  was  disappointed. 
Mr.  Sterne  interposed  a  vigorous  and  effective 
opposition  to  proceedings  not  in  the  interests  of 
the  stock-  and  bond -holders.  By  his  sagacious 
counsel  in  the  various  litigations,  in  which  the 
road  became  involved  after  the  default,  and  with 
reference  to  the  steps  to  be  taken  for  the  pro- 
tection of  the  general  interests  of  those  concerned, 
together  with  his  skill  in  negotiation  with  opposing 
interests,  he  produced  such  a  spirit  of  confidence 
in  the  ultimate  prosperity  of  the  road,  as,  coupled 
with  the  promise  of  adequate  financial  aid  toward 
its  rehabilitation,  brought  about  an  amicable 
arrangement  with  the  foreclosing  trustees,  whereby 
the  railroad  was  turned  over  to  the  new  manage- 
ment without  a  sale  at  auction.  The  old  bond- 
holders were  paid  under  the  plan  of  reorganisation 
either  in  new  bonds  or  in  cash,  and  the  stock- 
holders received  new  stock  and  certain  securities 
on  paying  a  prescribed  assessment. 


x  PROFESSIONAL  ACTIVITY         337 

The  expectation  of  the  Company's  ultimate 
prosperity  was  subsequently  realised,  and  Mr. 
Sterne's  share  in  promoting  it  was  fully  recognised 
by  its  officers.  In  the  negotiations  leading  to  the 
final  reorganisation  he  took  a  prominent  part,  and 
was  instrumental  in  receiving  the  largest  conces- 
sions obtainable  from  those  inimical  to  the  Com- 
pany. His  laborious  duties  were  performed  so 
faithfully  and  well,  and  resulted  so  much  to  the 
benefit  of  the  Company,  that  when  the  new 
management  took  the  property  out  of  the  hands 
of  the  receivers  in  1891,  and  began  to  operate  it 
on  its  own  account,  he  was  unanimously  elected 
the  Company's  General  Counsel,  and  so  continued 
to  act  until  his  death.  In  that  capacity  he  was 
able  to  render  many  and  varied  services  in  im- 
portant and  serious  litigations,  and  to  conduct 
negotiations  in  many  threatening  legal  complica- 
tions endangering  the  corporate  life  of  the  Com- 
pany. In  all  of  these  more  than  ordinary  legal 
abilities  and  great  foresight  were  required.  When 
it  is  remembered  that  the  Missouri,  Kansas,  and 
Texas  Railway  is  to-day  one  of  the  great  railroad 
systems  of  the  country,  operating  over  two 
thousand  miles  of  road,  and  running  through 
three  states  and  one  territory,  the  importance 
of  the  duties  which  devolved  on  Mr.  Sterne,  and 
the  nature  of  the  transformation  which  he  was 
largely  instrumental  in  effecting,  may  be  partly 
appreciated. 

The  high  appreciation  in  which  Mr.  Sterne 
was  held  by  his  associates  in  the  management  of 
the  road  is  shown  by  the  following  extract  from  a 


338          LIFE  OF  SIMON  STERNE    CHAP,  x 

resolution   adopted    by   the    directors    and   stock- 
holders after  his  death  : — 

Mr.  Sterne  was  identified  with  the  Missouri,  Kansas, 
and  Texas  Railway  Company  for  many  years,  and  both 
in  his  capacity  as  legal  adviser  and  as  a  director  he  served 
its  interests  zealously  and  loyally.  His  wise  counsel  and 
untiring  energy  have  been  of  valuable  assistance  to  the 
executive  officers  in  the  Company's  business,  and  in 
times  of  stress  and  emergency  he  was  always  found  fully 
equipped  to  protect  the  rights  and  property  of  the  stock- 
holders and  unswerving  in  his  fidelity  to  their  interests. 
The  history  of  the  Company's  success  during  Mr. 
Sterne's  connection  with  it  is  full  of  evidence  of  his 
high  professional  acquirements.  In  counsel  he  was  wise 
and  conservative ;  in  conflict  he  was  aggressive  and 
fearless.  As  a  man  he  commanded  the  respect  and  warm 
regard  of  all  those  with  whom  he  came  in  contact,  and 
his  unfailing  courtesy  and  the  brightness  of  his  disposi- 
tion endeared  him  to  those  with  whom  he  was  closely 
associated. 

It  will  be  admitted  by  those  who  knew  Mr. 
Sterne  that  the  tribute  of  the  stockholders  and 
directors  of  this  great  corporation  is  not  an  over- 
statement, and  that  it  is  justly  applicable  to  his 
representation  of  other  interests  and  clients. 


INDEX 


Academy  of  Political  Science,  ad- 
dressed by  Mr.  Sterne  in  1898, 

23* 

Adirondack  forests,  preservation  of,  28 
Ainsworth,  Danforth  E.,  on  Gover- 
nor Morton's  Commission,  169 
Alabama,  notice  of  intention  (Bills), 

i58 

Albany,  Capitol  building  at,  320 

Aldermen,  Board  of,  182,  183,  276- 
279,  292 

American  Academy  of  Political  and 
Social  Science,  Philadelphia,  60 

American  Free  Trade  League,  organ- 
ised by  Mr.  Sterne,  4,  72-76 

"Amsterdam  Avenue  Grab,"  28,  331, 

33* 
Arkansas,  notice  of  intention  (Bills), 

158 
Arthur,   President,  reform  in   tariff 

laws,  80 
Association  for  the  Advancement  of 

Social  and  Political  Science,  36 
Association  of  the  Bar  of  the  city  of 

New  York- 
Organisation  of,  suggested   by  Mr. 

Sterne,      333  j    addresses     and 

report  on   legislative  reform  by 

Mr.  Sterne,  25,  144-153  j  action 

concerning  Greater  New  York 

Charter,  295,  300 
Astronomy,  O.  K.  Mitchell's  lectures 

on,  3 
Audit,  Board  of,  in  time  of  Tweed, 

258 

Austrian  Government,  part  taken  by 
Mr.  Sterne  in  extradition  pro- 
ceedings, 319 


Baltimore  and  Ohio  Railroads,  com- 
bination with  other  companies, 

193 

Bar  Association  of  New  York  (see 
Association  of  the  Bar  of  New 
York) 

Baring  failure,  88 

Barrett,  George  C.,  candidate  for 
municipal  election  in  1899, 

3'3 

Barrett,  Wm.  C.,  on  Committee  of 
Seventy,  255 

Beers,  Henry  N.,  on  Committee  of 
Seventy,  255 

Bentham,  Jeremy,  58 

Biennial  sessions,  147,  169,  173 

Bigelow,  Hon.  John,  plan  of  minority 
representation,  120-122 

Bills- 
Lack  of  method  and  respon- 
sibility concerning,  134,  135- 
139,  146,  2645  Constitutional 
Commission  and  remedies  pro- 
posed by  Mr.  Sterne,  140,  141  j 
notice  of  intention,  140,  141, 
157-  160  j  British  Procedure, 
142,  147-153,  155,  166,  170, 
171  j  one  provision  of  reform 
accepted,  1535  Governor  Mor- 
ton's Commission,  24-26,  154- 
157,  169 ;  improvement  in 
1896  in  Bills  concerning  cities, 
293,  294 

Black,  Hon.  Frank  S.,  Governor  of 
New  York  State,  Mr.  Sterne's 
letter  to,  on  Greater  New  York 
Charter,  297-300 

Bland  Bill,  82,  83 


339 


34° 


LIFE  OF  SIMON  STERNE 


Board  of  Aldermen,  182,  183,  276- 
279,  292 

Board  of  Audit  in  time  of  Tweed,  258 

Board  of  Finance,  288 

Board  of  Trade  and  Transportation 

Association — 

Mr.  Sterne  one  of  the  founders 
of,  195  chairman  of  committee 
to  report  on  legislative  reform, 
25,  153  j  Bill  concerning  Rail- 
roads and  State  drawn  up  by 
Mr.  Sterne  at  request  of,  184  j 
counsel  for,  in  1879-80,  187, 
212,  321  j  protest  against 
Greater  New  York  Charter, 
300 j  success  of  Mr.  Sterne 
in  the  case  of  "  Freight- 
Handlers'  Strike,"  326 

Board  of  Trade  (British),  148,  150 

"  Boss  rule,"  239,  240,  315 

Bright,  John,  Mr.  Sterne's  friendship 
with,  4,  5  j  opinion  of  Mr. 
Hare's  scheme,  in 

British  Railway  Commissioners,  23 

Brooklyn,  proceedings  concerning 
railroads  in,  320 

Brown,  James  M.,  on  Committee  of 
Seventy,  255 

Browne,  J.  H.  Balfour,  23 

"  Bryanism,"  84,  85 

Buckalew,  Hon.  Chas.  R.,  112 

Buckner,  Simon  B.,  84 

Buildings  in  New  York,  height  of,  27 

Butler,  Wm.  Allen,  on  Tilden  Com- 
mission, 16,  287 

Cabinet,  British,  duties  of,  148 
Capitol  building  at  Albany,  320 
Carter,  Jas.  C.,  on  Tilden  Commis- 
sion, 1 6,  287 
Carlisle,  Mr.,  Speaker  of  House  of 

Representatives,  165 
Central    Crosstown    Railroad    Com- 
pany, Mr.   Sterne  counsel  for, 

319 

Chamber  of  Commerce,  Mr.  Sterne 
counsel  for,  187,  212,  3215 
protest  against  Greater  New 
York  Charter,  300 

Charter  Revision  Committee  (1900), 
27,  125,  126,  127,  314,  315 


Chesapeake  and  Ohio  Railroad  Com- 
pany, 319 

Chicago  and  Northern  Pacific  Rail- 
road Company,  328,  329 

Chicago  Convention,  84,  85,  93 

Choate,  Joseph  H.,  on  Committee 
of  Seventy,  255  j  reminis- 
cences of  Mr.  Sterne,  12,  13 

Church,  Chief- Justice,  134,  167 

Citizens'  Union  movement  (1899), 
3",  313 

City  Club,  New  York,  312,  314 

Civil  Service  reform,  172 

Cleveland,  Grover — 

Commissions  Mr.  Sterne'  to 
report  on  Railroad  question  in 
Western  Europe,  23  j  cam- 
paigns of  1884  and  1888,  27  j 
Mr.  Sterne's  support  of,  84  j 
Mr.  Sterne's  comments  upon 
Venezuelan  Message,  etc.,  93-95 

Cobblers'  Guild,  5 1 

Commercial  Advertiser,  4 

Commissioners  of  Statutory  Revision 
(1895),  161,  162 

Committee  of  Seventy — 

Origin  of,  and  appointment  of 
Mr.  Sterne  as  secretary,  n,  13, 
16,  253,  254;  composition  of 
Committee  on  Legislation,  255  j 
result  of  partial  investigation  of 
fraud,  255,  256  j  official  title 
and  line  of  work,  256,  257  j 
Charter  of,  122,  261-269  j  and 
Governor  Hoffman's  objec- 
tions to,  269-272  j  Republican 
Charter,  276-2795  dissolution 
of  Committee,  279-283  j  good 
work  of,  283 

Commonwealth  Club,  326 

Communism  defined,  56 

Connolly,  Controller,  259 

Constitutional  Commission,  140 
Constitutional     History     and   Political 
Development  of  the  U.S.,  book  by 
Mr.Sterne,  29  j  prefaceto,  76-79 

Cooper,    Edward,   on    Tilden  Com- 
mission,   16,    287  j    on    Com- 
mittee of  Seventy,  255 
Cooper  Institute,  lectures  given"  at, 
by  Mr.  Sterne,  2,  35,  36 


INDEX 


34i 


Cooper,  Mayor  of  New  York,  289 

Cooper,  Peter,  2 

Co  -  operation  and  Co  -  operative 
Societies,  45,  52,  53-59,  62-64 

"  Copperhead,"  74 

"  Corner  in  foodstuffs  impossible  in 
modern  days,"  233-235 

Corporation,  The :  its  Benefits,  its  Evils, 
etc.,  32,  220 

Corporations  (see  also  Railroads) — 
Growth  and  unscrupulous  power 
of,  174-177  ;  report  of  1843 
concerning,  188  j  limited  lia- 
bility, 220,  221  5  market  and 
intrinsic  value  of  stock,  222, 
223  5  State  control  advocated, 
223,  224  ;  various  fraudulent 
methods,  224-2285  Standard 
Oil  Company,  229-231  5  altered 
conditions  concerning  (1883-98), 
231  j  "corner"  of  foodstuffs, 
233-235  5  Trades  Unions  and, 
237,  238  ;  politician  guilds  and 
"boss  rule,"  238-2405  "cor- 
porate trusteeship,"  241-245  j 
proposed  Bill  concerning  alien, 
320 

Cott,  Van  (see  Van  Cott) 

Cotton  Exchange,  New  York,  judg- 
ment concerning  seat  on,  321 

Counsellor,  The,  334 

Courtney,  Leonard,  5 

Croker,  Richard,  163,  168 

Crotona  Park,  New  York,  320 

Cullom,  Senator,  connection  with 
Interstate  Commerce  Commis- 
sion, 24,  212 


Daily  News,  press  restriction  during 
Civil  War,  68 

Daly,  Joseph  F.,  Judge,  312,  313 

Davis,  Jefferson,  trial  of,  7,  8 

Day  Book  of  New  York,  press  restric- 
tion during  Civil  War,  68 

Delaware  and  Hudson  Railroads, 
growth  and  influence  of, 
192 

Delitzsch,  Herman  Schulze  (see 
Schulze-Delitzsch) 

Democratic  Club,  86 


Depew,  Chauncey,  allusion  to  Mr. 
Sterne  as  "  Don  Quixote,"  323 

Dillon,  John  F.,  Judge,  124 

Dimock,  Henry  F.,  on  Tilden  Com- 
mission, 16,  287 

Disraeli,  Benjamin,  opinion  on  cumu- 
lative voting,  in,  112 

Dix,  John  A.,  on  Committee  of 
Seventy,  255 

Dolfuss,  Charles,  65  j  Mr.  Sterne's 
letter  to,  66-68 

"  Don  Quixote,"  323 

Dunoyer,  ,  51 

Dwight,  Theo.  W.,  on  Committee 
of  Seventy,  255 

Earle,  Judge,  173 

Edmunds,  Senator,  164,  165 

Edson, ,  Mayor  of  New  York, 

289 

Education  Department,  New  York, 
305 

Election  day  suggested  as  a  legal 
holiday  by  Mr.  Sterne,  283 

Elevated  Railroad,  New  York  (see 
Manhattan  Elevated  Railroad) 

Elsberg,  Dr.  Louis,  1 1 

Elsberg,  Mathilde,  marriage  with 
Mr.  Sterne,  1 1 

Ely, ,  Mayor  of  New  York,  20, 

289 

Emigration  Commission,  10 

England — 

Mr.  Sterne's  visit  to,  4,  5  ; 
British  Railway  Commissioners, 
23  j  Free  Trade  Association  of 
London,  74  -  76  5  Railroad 
system,  1865  Board  of  Trade, 
148,1505  Parliamentary  pro- 
cedure, 142,  147-153,  155,  166, 
170,  171  5  trade  combinations, 
236,  237  5  compensation  to 
judges,  334,  335 

Erie  Railroad,  growth  of  influence 
and  power,  192 

Evarts,  William  M.,  on  Tilden  Com- 
mission, 16,  287 

Farmers'  Loan  and  Trust  Company, 

241 
Fawcett,  Professor,  4 


342 


LIFE  OF  SIMON  STERNE 


Field,  David  Dudley,  4 

Florida,  notice  of  intention  (Bills), 
158 

Forum,  The,  Mr.  Sterne's  articles  in, 
34,  199-201,  207,  301-311 

Fourier,  55 

Free  Trade  and  Protection — 

Mr.  Sterne's  views,  7,  59,  65,785 
tariff  taxation  (State  Revenue 
Reform  League),  79-81  j  taxa- 
tion in  New  York,  289,  290, 
302,  303,  305,  306  ;  American 
Free  Trade  League  and  Free 
Trade  Association  of  London, 
72-76 

Free  voting,  5,  6,  7 

"Freight  Handlers'  Strike,"  Mr. 
Sterne's  success  in  the  case  of, 
326 

Garfield,  James  A.,  112,  113 

Garfield,  President,  assassination 
of,  6 

Garvey,  Andrew  J.,  259 

Georgia,  notice  of  intention  (Bills), 
158 

German-American  Citizens'  Associa- 
tion, 289 

German  population  of  New  York 
and  the  liquor  law  in  1895, 

309 

Germany,  labour  problem  in,  45,  52 
Gladstone,  W.  E.,  quoted,  1 1 1 
Godkin,  E.  L.,  on  Tilden  Commis- 
sion, 16,  287 
Goepp,    Max,    in    partnership    with 

Mr.  Sterne,  318 
Gold  Standard  (see  Silver  Question) 

Grace, Mayor  of  New  York, 

289 
Grain     elevators      (steam),     strikes 

against,  45-47 
Granger  legislation,  186 
Greater    New    York    Charter,    27, 
122-125,295-300;  Mr.  Sterne's 
views     on     revision    of,    314- 

317 

Greeley,  Horace,  73,  74 
Green,     Andrew     H.,     Reform     of 

Finance    Department    of    New 

York,  260 


Guild  of  Shoemakers,  5 1 
Guilds,  ancient,  50,  51 

Habeas  Corpus,  suspension  of,  68,  69 

Hadley,  Professor,  326 

Hall,  Mayor,  259 

Hampton  Institute,  Virginia,  62 

Hancock, ,  campaign  for,  27 

Hand,  Samuel,  on  Tilden  Commis- 
sion, 16,  287 

Hanseatic  League,  50 

Hare,  Thomas,  Mr.  Sterne's  friend- 
ship with,  4,  5  $  plan  of  propor- 
tional representation  suggested 
by»  5-7,  101,  in 

Harlem  Railroad  (see  New  York 
Central) 

Havemeyer,  William  F.,  Mayor  of 
New  York,  Mr.  Sterne  counsel 
for,  19  j  appointment  of  Andrew 
H.  Green,  260  ;  elected  Mayor 
(1872),  272  ;  inaugural  message 
of,  273-275  j  protest  against 
Republican  Charter,  276-279  j 
Dissolution  of  Committee  of 
Seventy,  279-283  ;  failure  to 
reduce  taxation,  289  ;  death  of, 

323 

Heidelberg  University,  Mr.  Sterne 
a  student  of,  i 

Hepburn  Railroad  Investigation 
Committee,  Mr.  Sterne's  ardu- 
ous and  successful  work  in 
connection  with,  20-23,  *86- 
188,  212,  321-323 

Hewitt, ,  Mayor  of  New  York, 

289 

Hoffman,  Governor,  123  j  Constitu- 
tional Commission  appointed 
by,  1 66  j  veto  of  Charter  of 
Committee  of  Seventy,  269- 
272 

Home  Rule  Policy,  290,  291,  295, 
298 

Hudson,  Jas.  A.,  Mr.  Sterne  in 
partnership  with,  318 

Illinois,  minority  clause  in  constitu- 
tion of,  1 14,  115 
Income  Tax  Act,  88" 
"Independent  Democrats,"  284 


INDEX 


343 


Indianapolis,  Monetary  Convention 
held  at  (1897),  86 

Ingersoll,  Jas.  H.,  259 

Interstate  Commerce  Commission 
and  Act,  Mr.  Sterne's  work 
for,  24,  185,  196,  212,  214 

Journal  of  Commerce,  press  restriction 

during  Civil  War,  68 
Judges  of  the  United  States,  salaries 

°f,  334,  335 

Kansas,   political  representation   of, 

113. 

Kapp,  Friedrich,  founder  of  Emigra- 
tion Commission,  10,  u 

Kentucky,  political  representation 
of,  113 

Kenyon,  John  S.,  on  Governor 
Morton's  Commission,  169 

Kiernan,  case  of,  134 

Kleon,  the  Greek  demagogue,  imag- 
inary political  scheme  of,  105- 
107,  108 

Labour    Associations    in    Germany, 

45 

Labour  problem  (see  also  Machinery, 

Trades  Unions) — 
Mr.  Sterne's  lectures  on,  35,  36  j 
remuneration  question,  37,  41  j 
division  of  employment,  38,  39  j 
adjustment  of  capital  and  labour, 
38-41,  43,  44  j  profit  and  loss, 
41  j  ancient  Guilds,  50,  51  j 
co-operation  and  co-operative 
societies,  45,  52,  53-57,  62-64; 
usury  law,  58  j  opinions  of 
Messrs.  Pfahler  and  Purves, 
60-64 

Law  school,  Mr.  Sterne  a  student 
at,  i 

Learned,    Judge,    arrest    of    Tweed, 

258 

Legislation,  English  (see  under 
England) 

Legislative  reform  (see  also  Bills) — 

Mr.  Sterne's  views  and  addresses 

on,  8,  9,  134-1735  election  of 

speaker,  137  ;  responsibility  for 

Government        administration, 


142,  143  ;  Mr.  Sterne's  Report 
on  Plan  of  Reform,  144-153  ; 
biennial  sessions  suggested,  147, 
169,  173  j  brief  summary  of 
situation  (1898)  given  by  Mr. 
Sterne  in  letter  to  Mr.  Roosevelt, 
152-173  j  Constitutional  Com- 
mission appointed  by  Governor 
Hoffman  (1874),  166  ;  Chief- 
Justice  Church's  remark  on 
changeability  of  the  law,  134, 
167  j  slow  judicial  development, 
227,  228 

Lewellen,  J.  W.,  Mr.  Sterne's  letter 
to,  concerning  Jefferson  Davis, 
.7,8 

Limited  liability,  220,  221 

Linson,  John  J.,  on  Governor 
Morton's  Commission,  169 

Liquor   law   in   New   York   (1895), 

309 
Lloyd,  Henry  D.,  eulogium  of  Mr. 

Sterne's  work  on  Hepburn  Com- 
mittee, 22,  23 
Lobbying,  10,  146,  152 
Lott,   Judge    John   A.,    on    Tilden 

Commission,  16,  287 
Louisiana,  notice  of  intention  (Bills), 

158  ;    validity  of  bonds  of  the 

State,  319 
Low,  Seth,  cause  of  defeat  of,  309- 

3" 

Machinery,  effect  on  position  of 
working-men,  45-47,  57,  58, 
232,233,236 

Mackenzie,  Sir  Morrell,  a  client  of 
Mr.  Sterne's,  319 

M'Kinley  tariff,  87 

Maine,    political    representation    of, 

"3 

Manhattan  Elevated  Railroad,  225  j 
Mr.  Sterne's  successful  suit 
against,  324,  325 

Mark  Twain,  a  client  of  Mr.  Sterne's, 

3*9 

Markland,  John  H.,  Mr.  Sterne  a 
student  of  law  under,  i,  334 

Martin,  Justice,  242,  243 

Maryland,  political  representation  of, 
"3 


344 


LIFE  OF  SIMON  STERNE 


Massachusetts,  railroad  system  in, 
183,  186 

Mayor  of  New  York,  term  of  office 
lengthened,  308 

Metropolitan  Elevated  Railroad  of 
New  York,  225 

Mill,  J.  Stuart,  4,  102 

Miller,  Joaquin,  a  client  of  Mr. 
Sterne's,  319 

Mining  enterprises,  221,  222 

Minority  representation  (see  Propor- 
tional representation) 

Mississippi,  management  of  railroads 
in,  199-201 

Missouri,  Kansas,  and  Texas  Rail- 
roads, Mr.  Sterne's  success  as 
counsel  to,  335-337  $  laudatory 
resolution  adopted  after  Mr. 
Sterne's  death,  338 

Mitchell,  O.  K.,  3 

Monetary  convention  at  Indianapolis, 
86 

"  Monopolies,"  Mr.  Sterne's  article 
on,  32,  196-199 

Monroe  doctrine,  93 

Morrison,  Walker,  M.P.,  4 

Morton,  Governor,  Commission  ap- 
pointed by,  24-26,  154-157,  169 

Municipal  reform  (see  New  York 
City  Government) 

Nation,  the,  Mr.  Sterne's  letter  to, 
on  the  Silver  Question,  81,  82, 

National  Association  of  Iron  Foun- 
ders, 60 

National  Democratic  Committee, 
84,85 

National  Sound  Money  League,  86 

New  Jersey,  notice  of  intention  (Bills), 

.58 

New  Mexico,  litigation  concerning 
territory  in,  320 

New  York  and  Erie  Railroads,  188 

New  York  and  Northern  Railroad  v. 
New  York  Central,  241-244 

New  York  Central  and  Hudson 
Railroads  combine,  capitalisation 
of,  in  1869,  and  results,  179- 
181  j  Fourth  Avenue  improve- 
ment question,  181-183,  323, 


324 j  competition  with  canal, 
1 88  j  growth  in  influence  of, 
and  combination  with  other 
companies,  192,  193,  235,  236  ; 
New  York  and  Northern  Rail- 
roads, case  of,  241-244 
New  York  City  Government  (see 
also  Tammany,  Tweed  Ring, 
Committee  of  Seventy),  political 
corruption  since  1786,  247,  248, 
2495  prosperity  of,  1867-69, 
179  j  state  of,  in  1869,  10,  n, 
250,  251  j  Mr.  Havemeyer 
elected  Mayor  (1872),  272; 
inaugural  message,  273-2755 
Republican  Charter  and  Mr. 
Havemeyer's  protest,  276-279  ; 
election  of  Mayor  (1874),  284, 
285  ;  Governor  Tilden's  Com- 
mission, 16-19,  2^6,  287  j  in- 
crease of  taxation,  289,  290  j 
Home  Rule  policy,  290,  291, 
295,  298  ;  scheme  of  reform, 
291,  292  j  Board  of  Aldermen, 
182,  183,  276-279,  292;  im- 
proved laws  re  State  and  Cities, 
293,  294  j  separation  of  City  and 
State  elections,  294  j  Greater 
New  York  Charter,  295-300, 
314-317  j  Tammany's  recon- 
quest  of  New  York  (1897), 
300-311  }  Department  of  Edu- 
cation, 305  j  liquor  law  (1895), 
308,  309  j  cause  of  defeat  of 
Seth  Low  (1897),  309-311  j 
Judge  Daly's  candidature  (1899), 
312,  3135  "boss  rule,"  3155 
minority  representation,  314- 

317 

New  York  Municipal  Society  ad- 
dressed by  Mr.  Sterne  on  Legis- 
lative Reform  (1879),  135-143 

New  York  Soda!  Science  Review, 
Mr.  Sterne  the  editor  of,  4,  9 

New  York  State,  notice  of  inten- 
tion (Bills),  159  5  Report  of 
Commission  on,  160 

New  York  Times  quoted  on  Tam- 
many success  in  1874,  285 

New  Zealand,  commendation  of 
Hepburn  Committee,  23 


INDEX 


345 


Nicaragua  Canal  question,  320 
Nicoll,    Henry,    on    Committee   of 

Seventy,  255 
North  Carolina,  notice  of  intention 

(Bills),  1585  validity  of  bonds 

of  the  State,  319 
Northern  Pacific  Railroad  Company, 

328 
Notice    of    intention    to    introduce 

Bills  to  General  Assembly,  155, 

157-160 

O'Conor,  Charles,  defence  of  Jeffer- 
son Davis,  8  j  letter  to  Mr. 
Sterne  on  Reform  of  the  Bar, 
9  j  legal  summary  of  Tweed 
methods,  259 

Ohio  state  representative  govern- 
ment, 112,  113 

Olney,  Richard,  Secretary  of  State, 

25 

On  Representative  Government  and 
Personal  Representation,  book  by 
Mr.  Sterne,  29,  101,  102 

Otendorfer,  Oswald,  on  Tilden  Com- 
mission, 16,  287  ;  candidate  for 
Mayoralty  of  New  York 
(1874),  284,  285 

Palmer,  John  M.,  27,  84 
Parliamentary    procedure    (see  under 

England) 

Peckham,  Wheeler  H.,  295 
Pell,  Alfred,  one  of  the  founders  of 

American   Free  Trade  League, 

4 
Pennsylvania    notice    of     intention 

(Bills),  158,  159 
Pennsylvania  Railroad,  193 
Pennsylvania  University,  Mr.  Sterne 

student  of,  i 
People    v.    New    fork    Central    and 

Hudson   Railroad  Company,    Mr. 

Sterne's  success  in  the  case  of, 

326 

Personal  Representation  Society,  4 
Pfahler,  W.  H.,  60,  61 
Philadelphia,    Mr.    Sterne's    birth- 
place, i 
Pickens,  Samuel   O.,  letter  to  Mr. 

Sterne  on  election  of  1896,  85 


Pierrepont,  Edwards,  on  Committee 

of  Seventy,  255 
Platt,  Mr.,  163,  168 
Politician  guilds  and  "  boss  rule," 

238-240 
Politics,  Mr.   Sterne's  definition    of 

term    and  early  interest  in,  2, 

65 

Potter  legislation,  186 

Press,  the,  Government  censorship 
of,  during  Civil  War,  68-72 

Primary  Election  Law,  128 

Proportional  or  Minority  Repre- 
sentation— 

Mr.  Sterne's  advocacy  of,  96-133, 
288  j  correspondence  with  Mr. 
Roosevelt  concerning,  172,  173  ; 
embodied  in  Charter  of  Com- 
mittee of  Seventy,  261-2695 
Governor  Hoffman's  objections 
to,  269-272  $  effort  to  introduce 
principle  of,  into  Greater  New 
York  Charter,  295,  298,  307, 
308,  and  in  revision  of  Charter, 

3H-3I7 

Proportional  Representation  Society 
of  New  York— Mr.  Sterne's 
address  at  Saratoga  Conference, 
115-119 

Protection  (see  Free  Trade) 

Proudhon,  55 

Purves,  Alexander,  industrial  co- 
operation, 62-64 

Railroad  Commission  Bill  drawn  up 

by  Mr.  Sterne,  20,  184,  212 
Railroad  system  in  England,  186 
Railroads  and  State  (see  also  Corpora- 
tions, New  York  Central,  etc.) 
Mr.  Sterne's  early  study  of 
subject,  19,  23,  174,  178  } 
Cleveland  commissions  Mr. 
Sterne  to  report  on  European 
methods,  23,  245  unforeseen 
development  of  railroad,  177  j 
New  York  State  Railroad  the 
first  built,  178  j  system  in 
Massachusetts  advocated  by 
Mr.  Sterne,  183  ;  Railroad 
Commission  Bill  drawn  up  by 
Mr.  Sterne,  20,  184,  212  j 


346 


LIFE  OF  SIMON  STERNE 


Interstate  Commerce  Com- 
mission (see  that  title)  5 
Granger  and  Potter  legislation, 
1 86  j  Hepburn  Committee, 
186-188  j  railroad  competition 
with  canal,  188  5  freight  rates, 
189-191,  194-196,  212,  213, 
214  j  growth  of  railroads  in  New 
York  State  (1845-76),  191, 
1925  pooling  system,  192,  193, 
211-2155  "Monopolies,"  196- 
199  j  management  of  Missis- 
sippi Railroad,  199-201  ;  cause 
of  railroad  failures  and  remedies 
suggested,  201-211,  215-2195 
case  of  Manhattan  Elevated  Rail- 
road v.  Metropolitan  Elevated 
Railroad,  22$ 

Railway  and  Corporation  Latv  Journal, 
224 

"  Railway  Pooling,"  address  by  Mr. 
Sterne,  211-213 

Ramapo  water  job,  28 

Real  Estate  Exchange,  New  York, 
protest  against  Greater  New 
York  Charter,  300 

"  Recent  Railroad  Failures,  etc.," 
34  j  correspondence  on,  215- 
219 

Reed,  William  B.,  8 

Reform  Club,  New  York,  protest 
against  Greater  New  York 
Charter,  300 

Reforms,  various,  advocated  by  Mr. 
Sterne,  15 

"  Representative  Government,"  Mr. 
Sterne's  address  on,  30,  246, 
249 

Republican  Organisation,  New  York, 
Citizens'  movement  (1899), 
312 

Revenue  reform,  review  of  (1892- 
96),  87-91 

Revue  Germanique,  65,  66 

Rhode  Island,  notice  of  intention 
(Bills),  158 

Roosevelt,  Hon.  Theodore,  corre- 
spondence with  Mr.  Sterne  on 
Legislative  Reform,  162-173  5 
liquor  law  enforced  by  (1895), 
309 


Ruggles,  Samuel  B.,  on  Committee 
of  Seventy,  255 

St.  James's  Hall,  London,  Mr. 
Sterne's  speech  at  (1865),  4>  5 

"  Salaries  of  the  United  States 
Supreme  Court  Judges,"  article 
by  Mr.  Sterne  on,  34,  334, 

335 

Salomon,  Edward,  on  Committee  of 
Seventy,  255 

Saratoga,  Conference  of  Proportional 
Representation  Society  of  New 
York  held  at,  1155  Annual 
Meeting  of  American  Bar  Asso- 
ciation (1884),  24>  J44 

Saxton,  Charles  T.,  on  Governor 
Morton's  Commission,  169 

Schulze-Delitzsch,  Herman,  Trades 
Unions,  and  Co-operative  So- 
cieties in  Germany,  45,  52,  58, 

.59 

"  Science  of  Government  and  Poli- 
tical Economy,"  course  of  lec- 
tures delivered  by  Mr.  Sterne, 

2>  3 

Sewall,  Mr.,  85 
Sharswood,  Judge,  i,  3,  174 
Sherman,    Benjamin    B.,    on    Com- 
mittee of  Seventy,  255 
Sherman  Law,  repeal  of,  89 
Silver  Question,  the,  81-86,  89,  91- 

93 
Slavery,  Mr.  Sterne's  views  on,  65- 

68  5    opinion    of    Free    Trade 

Association  of  London,  74-76 
Smith,  Adam,  78 
Smith,  Charles  Stewart,  20 
Society    for    the    Advancement    of 

Political  and  Social  Science,  3 
Sound  money  (see  Silver  Question) 
Spencer,  Herbert,  4 
Standard  Oil  Company,  229-231 
Standing  orders  (British),   149,  166, 

170 

State  Grange  and  Millers,  21 
State     Revenue     Reform      League, 

organised    by    Mr.   Sterne,   79- 

81 
Sterne,     Henry    and    Regina    (Mr. 

Sterne's  father  and  mother),  i 


INDEX 


347 


Sterne,  Simon — 

Early  Life  :  Birth  and  parentage, 
i  j  admission  to  Philadelphia 
Bar,  i  j  move  to  New  York 
(1860),  2  j  visit  to  England 
(1865)  and  various  friendships 
formed,  4,  5  j  marriage  with 
Mathilde  Elsberg,  n 

Character  :  Qualities  cultivated  in 
early  life,  i  j  love  of  home,  etc., 
1 1  j  Mr.  Choate's  reminiscences 
of,  12,  13  j  devotion  and  energy 
in  public  work  and  reform,  14- 
16  j  capacity  for  work,  26-29  j 
appreciation  of,  by  legal  op- 
ponents, 328,  329 

Correspondence  :  Black,  Hon.  F. 
S.,  Governor  of  New  York 
State,  297  -  300  j  Dolfuss, 
Charles,  66-68  ;  Hare,  Thomas, 
6,  7  j  Lewellen,  J.  W.,  and 
others,  7,  8  j  O' Conor,  Charles, 
9  ;  Pickens,  Samuel  O.,  855 
Roosevelt,  Hon.  Theodore, 
162-173  j  Sharswood,  Judge, 
3  j  Whitney,  William  C.,  14 

Literary  work :  Journalistic,  4  j 
books,  29  j  list  of  pamphlets, 
articles,  etc.,  30-34 

Professional  work  (see  also 
Labour,  Proportional  Repre- 
sentation, Railroads,  New  York 
City  Government,  etc.)  :  Early 
study  of  political  economy,  2  ; 
various  societies  founded  by,  4  j 
speech  at  St.  James's  Hall 
(1865),  4,  5  ;  defence  of  Jeffer- 
son Davis,  7  j  political  reforms 
advocated  by,  155  various  elec- 
tion campaigns,  27  j  important 
posts  held  by,  2125  review  of 
work  and  ability,  318-338 

Illness  and  death,  28,  29 
Stocks  and  shares,  market   and  in- 
trinsic value  of,  222,  223 
Straus,  Oscar  S.,  in  partnership  with 

Mr.  Sterne,  318 

Strikes,  45-49  j   Mr.  Sterne's   work 
and   views   on   railroad  strikes, 
326-328 
Strong,  Mr.,  Mayor  of  New  York, 


disapproval  of  Greater  New 
York  Charter,  298  j  events 
during  administration  of,  301- 

311 

Suffrage  (see  Proportional  Repre- 
sentation) 

Tammany,  125,  126,  127,  252  ; 
success  of  (1874),  284,  285  j 
cause  of  reconquest  of  New 
York  (1897),  300-311,  314- 
317  j  defeat  of  (1901),  313 

Taney,  Chief- Justice,  334 

Tariff  and  taxation  (see  Free  Trade) 

Telephone  Company,  Mr.  Sterne's 
suit  against,  332,  333 

Texas,  political  representation  of,  1135 
notice  of  intention  (Bills),  158 

Thompson,  Daniel  G.,  in  partner- 
ship with  Mr.  Sterne,  318 

Thucydides,  105-108 

Tilden,  Samuel  J.,  Commission 
appointed  by,  16-19  j  elected 
Governor  of  State  of  New 
York,  285  j  views  on  muni- 
cipal reform,  250,  251,  286, 
287  j  part  taken  in  Tweed 
impeachment,  258,  260,  285 

Tracy,  Judge  Benjamin  F.,  124 

Trades'*  Advocate,  Mr.  Sterne's 
lectures  published  in  full 
(1865),  36 

Trades  Unions,  49-53,  61,  237,  238 

Twain,  Mark,  319 

Tweed  Ring  (see  also  Tammany, 
Committee  of  Seventy),  Board 
of  Aldermen,  182,  183,  276- 
279,  292  j  influence  and  am- 
bition of,  251  j  duration  and 
scale  of  robbery,  252,  253  j 
Tweed  Charter,  256,  292  j 
arrest  of  Tweed,  258  j  Board 
of  Audit  and  methods  of  Ring, 
258,  259  j  appointment  of 
Andrew  H.  Green,  260  j  suits 
against  local  banks  to  recover 
interest,  324 

Tweed,  Wm.  M.  (see  Tweed  Ring) 

Union  League  Club,  protest  against 
Greater  New  York  Charter,  300 


LIFE  OF  SIMON  STERNE 


United  States  America  against  Trans- 
Mitsouri  Freight  Association,  case 
of,  232 

Universities  of  Heidelberg  and  Penn- 
sylvania, Mr.  Sterne  a  student 
at,  i 

Usury  law,  58 

Van  Cott,    Joshua    M.,    on   Tilden 

Commission,  16,  287 
Van   Courtlandt   Park,  New  York, 

320 

Van  Wyck,  Mayor,  173 
Varnum,  Jos.  B.,  on  Committee   of 

Seventy,  255 
Venezuelan    message,    Mr.    Sterne's 

comments  on,  93-95 


Waite,  Chief- Justice,  335 

Wales,  Salem  H.,  285 

War,  Civil,  slavery,  65-68,  74-76  j 
press  restriction,  68,  69-72  j 
recovery  of  country  from,  76, 

77 

Watson,  James,  258,  259 

Western  Union  Telegraph  Com- 
pany, 225 

White,  Captain,  M.P.,  5 

Whitney,  Wm.  C.,  14 

Wickham,  W.  H.,  Mayor  of  New 
York,  284,  289 

Woodward,  Elbert  A.,  259 


Young,  Joseph  D.,  258 


THE    END 


Printed  by  R.  &  R.  CLARK,  LIMITED,  Edinburgh. 


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